California Court of Appeal Holds That Employee’s Interactive Process Request Is Not Protected Activity For Retaliation Claim

On January 21, 2015, the California Court of Appeal held that the City of Santa Monica (the “City”) did not fail to reasonably accommodate an employee, Tony Nealy, where Nealy was unable to perform the essential functions of the job and there were no alternate positions for which Nealy was qualified.  Nealy v. City of Santa Monica, (California Ct App 02/13/2015).  The court also found that the City did not have to grant an indefinite leave while Nealy waited for a position to open up for which he could qualify, and that the termination did not constitute retaliation. 

Nealy began working for the City in 1996.  While serving as a solid waste equipment operator, Nealy injured his right knee.  Eventually, Nealy returned to work with several work restrictions.  In August 2006, Nealy injured his lower back while on duty.  His doctor declared him temporary totally disabled for a few weeks and then cleared him to return to work to do “light duty, semi-sedentary office work,” and if such work was not available, Nealy was to be considered temporary totally disabled.  The City did not have any semi-sedentary office work available for Nealy so he remained off work. 

In December 2008, the City and Nealy held an accommodation meeting where Nealy asked to return to the solid waste equipment operator position despite his work restrictions.  In response to Nealy’s request, the City hired a third-party to perform an essential job function analysis for the position.  The City discussed the analysis and the work restrictions with Nealy and advised Nealy that the City could not reasonably accommodate him in his desired position because of Nealy’s inability to perform several of the essential functions of the job.  The City and Nealy considered other options such as vacant alternative positions.  However, there were no vacant positions for which Nealy qualified that also accommodated his work restrictions.  Thereafter, the City notified Nealy that it was unable to provide him with reasonable accommodation and completed his employer-generated CalPERS disability retirement application.

Nealy filed a complaint against the City under the Fair Employment and Housing Act (“FEHA”) for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation.  In its summary judgment motion, the City argued that (i) Nealy could not perform the essential functions of a solid waste equipment operator; (ii) Nealy was not a “qualified individual” within the meaning of FEHA; and (iii) Nealy did not engage in a “protected activity” for purposes of his retaliation claim.

The court concluded that the City had identified several essential functions that Nealy could not perform given his medical restrictions.  The court criticized Nealy’s failure to address all of the City’s points and held that “the fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation.”

The court also held that eliminating essential functions was unreasonable as a matter of law; therefore, the City was not required to eliminate duties to suit Nealy’s medical restrictions.

Furthermore, the court held that Nealy failed to establish that qualifying alternative positions existed at the time of the interactive process.  It held that FEHA does not require the employer to provide an indefinite leave of absence to await possible future vacancies.

Finally, the court held that Nealy’s exercise of the rights to request a reasonable accommodation and to engage in the interactive process did not constitute protected activity for a FEHA retaliation claim.

What This Means for Employers

The case confirms several well-established principles associated with disability discrimination claims, including that all essential job functions should be identified as part of the reasonable accommodation evaluation (ideally beforehand in a job description); that an employer is not required to eliminate essential functions as a reasonable accommodation; and that an employer need not provide an indefinite leave while waiting for a vacant position to become available.  The case also articulates, for the first time, that an employee’s exercise of his right to request a reasonable accommodation and to engage in the interactive process does not qualify as protected activity to support a retaliation claim.

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