Vicente v. City and County of San Francisco CA1/4

Filed 10/17/23 Vicente v. City and County of San Francisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR JORGE VICENTE

Plaintiff and Appellant,

A166480 v. CITY AND COUNTY OF (San Francisco City & County SAN FRANCISCO, Super. Ct. No. CGC-19-576623)

Defendant and Respondent.

Jorge Vicente appeals a summary judgment in favor of his employer, the City and County of San Francisco (the City), entered after the trial court found no triable factual disputes material to Vicente’s causes of action under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for disability discrimination, failure to accommodate, failure to engage in an interactive process, and retaliation. The court held that Vicente’s admission that he was “completely unable to perform his work duties with or without accommodation” throughout the time covered by his suit foreclosed his claims for discrimination and failure to accommodate, that his failure to allege retaliation in his complaint to the Department of Fair Employment and Housing (DFEH) (since renamed the Department of Civil Rights) barred his retaliation claim for failure to exhaust administrative remedies (id., § 12960), and that he failed to identify facts supporting relief on his interactive process claim. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY The City’s motion set forth the following undisputed material facts.1 As of 2013, Vicente worked for the City’s Public Utilities Commission

(PUC). The PUC told him in November 2013 that he was under investigation for alleged misconduct. Vicente contended that he began to experience severe physical and psychological symptoms arising from the investigation. In January 2014, the symptoms became so severe that he could no longer work and took short-term disability leave.

The City terminated Vicente’s employment in April 2014; he filed a grievance challenging the termination; and an arbitration ensued. The arbitrator issued an award on July 8, 2016 (the 2016 Award). He ruled that some discipline was appropriate but the City had not adduced evidence justifying termination. The 2016 Award reduced the penalty to a written warning and awarded backpay. The Arbitrator retained jurisdiction for further proceedings.

After the Arbitrator issued the 2016 Award, the City made the following efforts to coordinate Vicente’s return to work.

On July 12, 2016, Deputy City Attorney Sallie Gibson emailed Vicente’s attorney to ask that Vicente contact PUC employee Rachel Gardunio about coordinating his return to work.

On July 19, 2016, Gardunio called Vicente to coordinate his return and tell him that he could start work at any time. During the call, Vicente did not disclose his symptoms or diagnoses or state that he had a disability. After Gardunio told him that she wanted to put him back to work right away, he undisputedly said that he was not ready to return to work and would need to check with his therapist, and he claims that he stated he was “going to need a . . . physical and psychological evaluation.” The City acknowledges a factual dispute as to whether Vicente requested that the City arrange a physical and psychological evaluation before he returned to work. However, it is undisputed that the City did not agree to provide medical examinations for Vicente during this phone call.2 Vicente contends there is a factual dispute as to whether the City had reason to know, as of July 19, 2016, that Vicente had some disability, but there is no genuine dispute that the City did not then know that he had a disability that made him completely unable to return to work.

On July 22, 2016, Deputy City Attorney Gibson wrote Vicente’s lawyer that Vicente could call Gardunio “at any time about coordinating his return to work” and that there was “no reason why his return to work should be delayed” while counsel resolved pending disputes over back pay.

On September 21, 2016, Gibson wrote to Vicente’s counsel that the PUC was “ready to put Mr. Vicente back to work immediately.”

On January 9, 2017, Vicente’s counsel sent the City a copy of a letter by his psychiatrist, Dr. Michael Auza, certifying that work-related stress and resultant “emotional, psychological and psychiatric trauma” had disabled Vicente from working as of January 2014 and that he was “unable to work.”3

On January 27, 2017, Gardunio sent Vicente and his counsel a letter stating that the PUC had set a return to work date of February 7. After counsel replied that Vicente would be busy then preparing for the next arbitration hearing, set for February 9, Gardunio sent Vicente a letter on February 1 setting a return date of February 13. The February 1 letter provided reasonable accommodation paperwork for Vicente.

On February 2, 2017, Vicente’s counsel sent Gardunio a letter stating, “Vicente is unable to return to work on February 13, 2017 with reasonable accommodations.” Dr. Auza prepared a letter dated February 8 reiterating that Vicente remained unable to resume work due to symptoms related to psychiatric conditions.

On February 9, 2017, Vicente provided the City with a request for accommodation form. On February 10, 2017, the PUC sent Vicente a letter stating that it had granted him an interim leave.4 On February 13, 2017, it reinstated Vicente to a status of leave of absence.

In sum, there is no valid dispute that, between July 19, 2016, and February 13, 2017, neither Vicente nor his counsel contacted the City to coordinate his return to work.5 On June 15, 2017, the Arbitrator issued a

Vicente returned to work in September 2017.

In May 2018, Vicente filed a complaint with the DFEH alleging denial of accommodation and failure to interact, but not retaliation.

Vicente also pursued worker’s compensation for injuries allegedly due to the investigation and termination. In August 2019, he and the City entered a settlement resolving his worker’s compensation claims.

In June 2019, Vicente filed the complaint initiating this action. The operative First Amended Complaint asserts causes of action for disability discrimination, failure to engage in a good faith interactive process, failure to accommodate a disability, and retaliation.

In December 2021, the City moved for summary judgment. It sought judgment as a matter of law on many alternative grounds: that Vicente did not administratively exhaust his claims by timely filing a complaint with the DFEH; that the arbitration award and worker’s compensation settlement estopped him to assert his claims and compensated him fully for any harm; and that his claims failed on the merits on many grounds. The City’s separate statement concluded by reiterating that Vicente “was completely unable to

The court heard the motion for summary judgment in August 2022. Vicente’s opposition made one argument on the merits, about the interactive process claim, and issued a blanket assertion that “many issues of fact are disputed.” His response to the separate statement purported to dispute 24 of 44 material facts. Vicente’s opposition papers did not address the administrative exhaustion argument or the merits of the disability discrimination, failure to accommodate, and retaliation claims.

At the hearing, Vicente’s counsel addressed only the interactive process and discrimination claims and the City’s issue preclusion argument. He expressly rejected the City’s position that the leave of absence it provided starting in February 2017 constituted an accommodation.

The court granted the motion in full. Its order held that Vicente did not identify a genuine dispute as to any material fact, as his responses to the separate statement were “incoherent and nonresponsive.” It held that the discrimination and failure to accommodate claims failed because he had been unable to work in the period at issue, the retaliation claim failed because he had not raised it in his DFEH complaint or offered evidence making a prima facie case, and the interactive process claim failed because his only argument was that the City “ ‘refused to communicate with [his] counsel,’ ” yet the record was replete with such communication.

After entry of judgment, Vicente timely appealed.

DISCUSSION

On appeal from a summary judgment, we review the ruling de novo. (Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1107.) Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action.” (Id., subd. (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Serri v. Santa Clara University (2014) 226 Cal. App.4th 830, 859.) “We liberally construe the evidence in support of the plaintiff opposing summary judgment and resolve doubts concerning the evidence in his favor.” (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7.) We exercise our independent judgment, without regard for the trial court’s reasoning, “as to the legal effect of the undisputed facts [citation] and must affirm on any ground supported by the record.” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.)

We note that our review is limited to the issues which the parties have presented and briefed. “[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.” (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 230.)7

A. Vicente’s Admission That He Was Not Able to Work With or Without Reasonable Accommodation Is Fatal to His Disability Discrimination Claim FEHA provides, in relevant part, that it is unlawful for an employer, because of physical disability or mental disability, “to discriminate against a person in compensation or in terms, conditions or privileges of employment.” (Gov. Code, § 12940, subd. (a).) Subdivision (a)(1) of section 12940 makes clear that FEHA does not prohibit an employer from refusing to hire, or discharging an employee with a physical or mental disability; nor does FEHA subject an employer to any legal liability resulting from refusing to employ or discharging an employee with a physical or mental disability, if the employee, because of a physical or mental disability, “is unable to perform the employee’s essential duties even with reasonable accommodations or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”

Claims under the FEHA that an employer discriminated on the basis of disability require that the plaintiff have been able, with or without accommodation, to perform the essential functions of the job. (Green v. State of California (2007) 42 Cal.4th 254, 267 [discrimination]; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 980–981 (Nadaf- Rahrov) [failure to accommodate]). Vicente does not dispute that he was “completely unable to perform his work duties with or without reasonable accommodation between April of 2014 and September 10, 2017.” Thus the trial court correctly ruled that Vicente failed to create a triable issue of material fact on the disability discrimination claim.

On appeal, Vicente asserts that material issues of disputed fact exist, cites authority about aspects of a disability discrimination claim that are not relevant here, and fails to address the point that he cannot state a claim for disability discrimination under FEHA if he is unable to work with reasonable accommodation.8 Vicente fails to address the dispositive effect this undisputed fact has on his claim, and at this point he has forfeited the issue. A person who is unable to work with or without accommodation may not state a claim for discrimination based on a disability because an employer is not required to employ someone who is completely unable to work. (Green v. State of California, supra, 42 Cal.4th at p. 262; Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 980–981.) We affirm summary judgment on the disability discrimination claim.

B. Vicente’s Admission That He Was Not Able to Work With or Without Reasonable Accommodation Also Forecloses His Interactive Process Claim An employer must “engage in a timely, good faith, interactive process with [an] employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known . . . disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) “The interactive process imposes burdens on both the employer and employee. . . . ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, . . . the initial burden rests primarily upon the employee . . . to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ ” (Scotch v. Art Institute of

California (2009) 173 Cal.App.4th 986, 1013 (Scotch).) However, “no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.’ ” (Ibid.)

Vicente contends that he triggered a duty for the City to engage in interactive process during a July 2016 phone conversation with Gardunio, because his oral request for a fitness for duty examination was “precisely the type of information which triggers the duty to commence and engage in the interactive process.”9

Even if we assume that Vicente triggered a duty for the City to engage in an interactive process, we affirm the judgment as to this claim based on the undisputed fact mentioned above, that “Plaintiff was completely unable to perform his work duties with or without accommodation between April of 2014 and September 10, 2017.”10

The majority view is that an employee can prevail on an interactive process claim only if they identify a reasonable accommodation that could have

Vicente’s contention at oral argument that there was an “eight month window” where the City should have engaged in an interactive process fails in view of the time period covered by this undisputed fact. enabled them to perform the essential functions of their job. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379; Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 980–981.11) The undisputed fact that Vicente’s disability prevented him from working, with or without accommodations, from April 2014 until his return to work in September 2017 forecloses his interactive process claim. The City has raised this ground both below and on appeal, and Vicente has not addressed it in either court. His silence forfeits any argument that the interactive process claim can succeed given the undisputed fact that he was unable to work, with or without a reasonable accommodation, throughout the relevant period.12 (Cahill, supra,

Not only has Vicente refrained from asserting that leave could constitute a reasonable accommodation, but at the summary judgment hearing, Vicente’s 194 Cal.App.4th at 956.) We therefore affirm the judgment on the interactive process claim.

C. Vicente’s Purported Disputes as to the City’s Undisputed Material Facts Do Not Create Material Disputes of Fact Preclusive of Summary Judgment Vicente contends that the court erred in granting summary judgment because he “disputed no less than 23 of the [City’s] 44 separately stated [undisputed material facts].” He paraphrases Nazir v. United Airlines (2009) 178 Cal.App.4th 243 (Nazir), for the proposition that “if even one of the allegedly material facts [set forth in the separate statement] is successfully disputed, the motion must be denied.” In Nazir, the court criticized a moving party for propounding numerous facts in a separate statement, then adding a disclaimer, “Not all facts listed herein are necessarily material,” about its own factual representations. (Id. at p. 252.) The court in Nazir observed that such a disclaimer “ignores the advice from the leading practice treatise: ‘PRACTICE POINTER: [¶] . . . [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, pp. 10–35.)” (Ibid.) lawyer unequivocally rejected the idea, arguing “the City, rather than engage in the interactive process, just decided to put Mr. Vicente on administrative leave, and . . . claim that that was an accommodation. That’s not an accommodation” (italics added). Vicente thus waived any contention that a leave was an available accommodation, the existence of which might have enabled him to prevail on an interactive process claim under the majority rule noted above.

The principle noted in Nazir enables a court to treat a party’s inclusion of a fact in its separate statement as a concession of the fact’s materiality. (See Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 521–522 (Insalaco), quoting Nazir, supra, 178 Cal.App.4th at p. 252.) The courts in Nazir and Insalaco addressed situations where defendants, faced on appeal with genuine disputes as to facts set forth in their separate statements, defended orders granting summary judgment by discounting their originally propounded facts as immaterial. (Insalaco, supra, 49 Cal.App.5th at p. 521 [defendant’s rejoinder that their own propounded facts were not material was insufficient to uphold summary judgment, as defendant could not “have it both ways”]).

It does not follow, however, that a reviewing court must accept a factual dispute as preclusive of summary judgment merely because the fact is included in the moving party’s separate statement. Even the court in Nazir observed, “[W]e exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff’s claims.” (Nazir, supra, 178 Cal.App.4th at p. 253, citing Romano v. Rockwell Internat., Inc., (1996) 14 Cal.4th 479, 457.) A court is not bound to accept a party’s concession of a point of law, such as the materiality of a fact. (Desny v. Wilder (1956) 46 Cal.2d 715, 729.)

This court retains the power to determine that, although a fact set forth in the separate statement is disputed, the dispute may not bar summary judgment if the fact is not truly material — or because the fact is material, but not to the theory upon which summary judgment is proper. (Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 773 (Pereda) [“The fact that plaintiff disputes the vast majority of facts [in the separate statement] does not mean that any of those facts is material to the issue upon which summary judgment was ultimately granted”].) In short, Vicente’s assertions do not create material disputes of fact merely because he wrote “DISPUTED” in his responses to the separate statement.

Having reviewed Vicente’s response to the separate statement, we conclude that while he identified several stated facts that are in some part disputed, he did not identify a genuine dispute as to any fact material to the City’s entitlement to judgment.

Twenty of Vicente’s 24 purported disputes of fact did not challenge the correctness of the fact at all. Six of Vicente’s purported disputes were nonresponsive criticisms of the conduct at issue in a stated fact, not disputes of the fact’s veracity.13 Eight others disputed not the veracity of the stated fact but its legal significance, by reciting other facts that did not conflict factually with the stated fact, disputing how to frame the fact, or emphasizing other aspects of the event at issue.14 Such argumentative responses belong in a party’s opposition memorandum, not in a response to a separate statement. Six more purported disputes raised unsound evidentiary objections.15

That leaves only four responses challenging the veracity of the stated facts. One is unsupported by the record,16 while another raised a genuine but trivial dispute about a factual detail that is immaterial to any theory on which the judgment was granted or is now upheld.17

The third dispute concerned the stated fact that “The City did not learn that [Vicente] was completely unable to work until January 9, 2017, when Arbitrator cit[ing] to no evidence”; and he disputed a statement that he “was reinstated to the status of leave of absence as of February 13, 2017” by stating, “[t]he cited Exhibits do not support the alleged fact.” But “self- serving” is not an evidentiary objection, the objection does not contradict the correctness of the fact alleged, and the declaration of Gardunio, the PUC’s Acting Chief People Officer, describes the policies of the PUC based on her personal knowledge (rather than by speculation). The hearsay objection to the arbitrator’s findings is inapt because the separate statement describes the findings not to establish the truth of the facts found but to show the existence of the findings, for purposes of the City’s issue preclusion argument.

The final dispute arises from Vicente’s claim that there is no evidence for the stated fact that “The City granted [Vicente] leave as an accommodation on an interim basis on February 10, 2017” (italics added). Vicente is correct that the letter cited by the City dated February 10, 2017 does not support the italicized part of that assertion. However, even

DISPOSITION

The judgment is affirmed. The City shall recover its costs on appeal.

HIRAMOTO, J WE CONCUR:

BROWN, P. J.

STREETER, J.

Vicente v. City and County of San Francisco (A166480)

 Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.