Hastings v. Department of Corrections

• Decision Date: 22 July 2003
• Docket Number: No. C041708.,C041708.
• Citation: 2 Cal.Rptr.3d 329,110 Cal.App.4th 963
• Court: California Court of Appeals Court of Appeals
• Parties: Walter W. HASTINGS, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

2 Cal.Rptr.3d 329

110 Cal.App.4th 963

Walter W. HASTINGS, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS, Defendant and Respondent.

No. C041708.

Court of Appeal, Third District.

July 22, 2003.

Rehearing Denied August 21, 2003.

Review Denied October 15, 2003.

Law Offices of John C. Ferry and John C. Ferry for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Andrea Lynn Hoch, Chief Assistant Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Miguel A. Neri and Fiel D. Tigno, Supervising Deputy Attorneys General, Jerry Curtis, Deputy Attorney General, for Defendant and Respondent.

BLEASE, Acting P.J.

Plaintiff Walter W. Hastings appeals from the granting of a summary judgment in favor of defendant California Department of Corrections (CDC or Department) in his suit for discrimination on the basis of his physical disability in violation of the California Fair Employment and Housing Act (FEHA). (Gov.Code, § 12940 et seq.)¹

On appeal, plaintiff, a probationary candidate for correctional officer, disqualified by reason of knee injuries, contends he is entitled to reassignment to another position within the CDC, such as a data processor, as a reasonable accommodation for his physical disability.

We disagree because the FEHA, read in harmony with the civil service laws, requires accommodation only to a position within the same civil service classification for which he is a candidate. Because plaintiff seeks accommodation by reassignment to a different position within the CDC without complying with the civil service requirements for the position, his action must fail.²

We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND³

Plaintiff applied for the position of correctional officer with the CDC. By letter dated January 25, 1995, the CDC gave him a conditional offer of employment for that position.⁴

The CDC requires a candidate for the position of correctional officer to complete training as a correctional cadet at the Basic Correctional Officer Academy (Academy). To successfully complete the Academy, a cadet is required to undergo rigorous physical training classes which include calisthenics, step aerobics, long distance running up to a mile and a half, interval sprinting of 220 and 440 yards, and weight room sessions, which may also include interval sprinting of 220 yards. Cadets are also required to pass an Emergency Response Simulation test.⁵ The overall goal of the physical training is to bring the cadet to a physical condition that will enable him to perform the essential job functions of a correctional officer.

The CDC has determined the essential job functions of a correctional officer include, but are not limited to walking, running in an all-out effort from a few yards up to 400 yards, and ascending or descending a series of stairs or several tiers of stairs or ladders, while carrying various items, including other persons; crawling and crouching under an inmate's bed, or while firing a weapon, or searching for property; lifting and carrying from 20 pounds to 50 pounds frequently throughout the workday and up to 400 pounds occasionally; and overall body flexibility.⁶ The CDC has determined that these functions are necessary for the safety of the prison facility and that all correctional officers must be physically able to respond to emergency situations.

The correctional officer is expected to have the ability to work 24 hours at any post or any particular assignment or watch. No matter how isolated or apparently sedentary a correctional officer's principal assignment may be, each and every correctional officer must be able to perform the essential job functions, as any correctional officer may be called upon to respond immediately to any emergency situation, at any time, in the correctional facilities. The Academy training required by the CDC is necessary to identify those persons who can and cannot perform the essential job functions of a correctional officer.

Plaintiff commenced the six-week training course at the Academy as a correctional officer cadet on November 2, 1996. After two weeks of training, he suffered knee injuries while running, and was unable to complete the course. The cause of the injuries was due to a degenerative joint disease in both knees and was determined to be a permanent condition.

As a result of plaintiffs knee injuries, he is unable to meet the physical training requirements at the Academy because he is unable to walk more than a few yards without the use of a cane, he needs a knee brace to stand up for any extended period of time, he cannot climb up or down stairs without severe pain, he is unable to run, and is generally immobile.

Plaintiffs treating physician signed a permit releasing him to work for any type of work other than as a correctional peace officer cadet. Counsel for plaintiff requested an accommodation on plaintiffs behalf involving modified or alternate employment, suggesting a position in which he would be doing computer data entry.

CDC determined that plaintiffs permanent knee injuries precluded him from performing the essential job functions of a correctional officer and rejected him from probation pursuant to section 19173, on the grounds his condition prevented him from performing the essential duties of a correctional officer.⁷

Plaintiff filed suit against the CDC, alleging, inter alia, unlawful disability discrimination and retaliation⁸ and alleged that he requested an accommodation for an alternate position with CDC to which he never received a formal response.

Defendant moved for summary judgment on the grounds plaintiff cannot establish the prima facie elements of his claim and he is not entitled to a reasonable accommodation in the correctional officer position because no reasonable accommodation would enable him to perform the essential job functions of that position. The trial court granted defendant's motion, concluding that plaintiff is unable to establish a prima facie element of his claim because he cannot show he is qualified to be hired as a correctional officer.⁹

Plaintiff appeals from the order of dismissal following the granting of summary judgment.

DISCUSSION

Plaintiff contends the basis for the trial court's ruling is in error because he was a qualified employee of the CDC when he was hired on January 25, 1995, and is entitled to a reasonable accommodation for his physical disability by reassignment to a vacant position within the CDC such as data processor.

CDC contends plaintiff cannot establish the prima facie element of his claim that he was qualified for the position of correctional officer and is not entitled to a reasonable accommodation, because even with an accommodation, he is unable to perform the essential job functions of a correctional officer. In a supplemental letter brief, the CDC contends that, interpreted in light of the civil service merit principle, accommodation by reassignment is not available to a probationary employee.

We agree that under the circumstances of this case, plaintiff is not entitled to a reassignment.

A. Standard of Review

A motion for summary judgment shall be granted when "all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc 437c, subd. (c).) A moving defendant is entitled to judgment as a matter of law when one or more elements of the plaintiffs case cannot be established or there is a complete defense to that cause of action. (Id., subds. (a), (o)(2); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 356, 100 Cal.Rptr.2d 352, 8 P.3d 1089.)

On appeal after a summary judgment has been granted, we review de novo the trial court's decision to grant summary judgment and are not bound by the trial court's stated reasons. (Hersant v. Department of Social Services (1997) 57 Cal. App.4th 997, 1001, 67 Cal.Rptr.2d 483; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951, 62 Cal.Rptr.2d 142 (Prilliman).) "We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show `"specific facts,"' and cannot rely upon the allegations of the pleadings." (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385, 96 Cal.Rptr.2d 236 (Spitzer.)

B. Prima Facie Case under the FEHA

The FEHA makes it "an unlawful employment practice, unless based upon a bona fide occupational qualification ... ¶ [f]or an employer, because of the ... physical disability ... of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment...." (§ 12940, subd. (a).) An employer is not prohibited "from refusing to hire or discharging an employee with a physical ... disability ... where the employee, because of his or her physical ... disability, is unable to perform his or her essential duties even with reasonable accommodations...." (Id., subd. (a)(1).)

The essential functions of a position are "the fundamental job duties of the employment position the individual with a disability holds or desires." (§ 12926, subd. (f).) The FEHA lists the evidence that may be considered in determining the essential functions of a job, which "includes, but is not limited to ... [t]he employer's judgment as to which functions are essential ... [and w]ritten job descriptions prepared before advertising or interviewing applicants for the job." (§ 12926, subd. (f)(2)(A) and (B); see Kees v. Wallenstein (9th Cir.1998) 161 F.3d 1196, 1199.)¹⁰

To establish a prima facie case for discrimination under the FEHA, the plaintiff must prove he is qualified for the position for which an accommodation is sought. (Quinn v. City of...