Doe v. Dep't of Corr. & Rehab., E071224

• Citation: 43 Cal.App.5th 721,255 Cal.Rptr.3d 910
• Decision Date: 27 November 2019
• Docket Number: E071224
• Court: California Court of Appeals
• Parties: John DOE, Plaintiff and Appellant, v. DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.

43 Cal.App.5th 721

255 Cal.Rptr.3d 910

John DOE, Plaintiff and Appellant,

v.DEPARTMENT OF CORRECTIONS AND REHABILITATION, Defendant and Respondent.

E071224

Court of Appeal, Fourth District, Division 2, California.

Filed November 27, 2019

Law Offices of Frank S. Moore and Frank S. Moore, San Francisco, for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Celine M. Cooper and Michael J. Early, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

SLOUGH, J.

John Doe, who used to work as a psychologist at Ironwood State Prison (Ironwood), sued his former employer, the California Department of Corrections and Rehabilitation (CDCR), under the California Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ),¹ alleging discrimination, retaliation, and harassment based on disability. Doe also alleged CDCR violated FEHA by failing to accommodate his two disabilities, asthma

and dyslexia, by relocating him to a cleaner and quieter office and providing him with requested computer equipment. Finding no triable issues of material fact, the trial court granted summary judgment in favor of CDCR. We affirm.

IFACTS

The parties submitted the following evidence in support of their arguments at the summary judgment stage.

In August 2007, Doe submitted an employment application with CDCR for a permanent psychologist position. The application asks applicants to check the boxes that apply to them, one of which is for disabled individuals, and states, "DISABLED—A person with a disability is an individual who ... has a physical or mental impairment

or medical condition that limits one or more life activities, such as ... learning ... or working; ... has a record or history of such impairment or medical condition; ... or is regarded as having such an impairment or medical condition." Doe did not check the disabled box, and, at his deposition in this case, acknowledged he had signed the application under penalty of perjury.

Doe began working as a psychologist at Ironwood in 2012. In 2013, he submitted an accommodation request using CDCR's standard form. He requested "Time to read and write in a work space that's quiet to help w/focus and concentration." In response to the form's question, "What are your limitations?" he wrote, "(LD NOS) reading, written expression." The parties agree that LD NOS stands for "learning disorder not otherwise specified."

On January 9, 2013, Doe met with a staff member of CDCR's "Return to Work," the department that handles accommodation requests. They requested Doe provide medical documentation of the nature and extent of his limitations in order for CDCR to determine which accommodations, if any, it could provide. Doe received a memo dated January 16, 2013 from Return to Work stating his request remained pending "due to lack of medical substantiation." Doe submitted a note from his physician, Dr. Kim, dated January 24, 2013, which said: "Please provide [Doe] with a quite [sic ] workplace that will help with attention and concentration. He is easily distracted and, under stress, can become disorganized. Extended time should also help him by reducing the pressure and allowing him to successfully complete assignments."

Dr. Bresee, Doe's supervisor at the time, submitted a written response to Doe's accommodation request on March 7, 2013. The response says, "By the time I met with [Doe] in early February [2013], we had already done all that we were able to do ... to provide an appropriate work space that was as free from distraction as was possible." Dr. Bresee explained that all mental health offices had two work stations and all clinicians had to share their offices with another clinician. He said Doe's office mate had agreed to switch desks so Doe could have the desk he found less distracting. But Doe was not satisfied after the switch and complained to Dr. Bresee that he felt like he was the only psychologist who didn't have a private office.

Dr. Bresee added, "Ideally, as we move forward, [Doe] will be able to spend more of his time doing almost all of his work in the Mental Health offices on the yards. We are temporarily sharing them, but that should be ending soon. That is what we are moving to. In this way he will see an inmate and when that is done he can use the office as a solo office to finish his paperwork." Dr. Bresee's remark about private offices "on the yards" was a reference to Ironwood's upcoming transition to the "complete care model," a way of organizing the prison's work spaces so its various healthcare professionals (e.g., psychologists, nurses, and dental practitioners) are located closer to the inmates they serve.

According to Doe, switching desks with his office mate did not solve the distraction problem and, at his doctor's direction, he took a three-month medical leave "due to stress." Doe said when he returned to work, he was given a quieter, less distracting office but, because he knew the arrangement was temporary, that "made it very hard for me to organize my work." He said it was still taking him too long to complete his assignments because he wasn't allowed to have a thumb drive and he hadn't been trained to use Ironwood's shared server. He said that in order to get access to his patients' records he had to ask the psychologist who worked next to him for copies. Doe said he felt he was being "discriminated against" because other Ironwood clinicians were using thumb drives at work.

In October 2013, Doe settled a different harassment lawsuit he had brought against CDCR. In exchange for a payment of $120,000, Doe dismissed the suit and released any claims he may have had against CDCR at the time, including FEHA claims.

According to Doe, the retaliation and harassment began in 2014 and was perpetrated by his supervisor at the time, Dr. Castro. Doe identified the following incidents as support for his discrimination, retaliation, and harassment claims.

On February 11, 2014, Dr. Castro had an hour-long meeting with Doe about his job performance that "felt ... like an interrogation" because he was criticizing Doe's work. Doe said Dr. Castro got "angry and hostile" when Doe couldn't understand his "heavy accent." Doe said the meeting made him feel anxious and caused his asthma

symptoms to increase. An Ironwood employee who transcribed the meeting said Dr. Castro criticized two progress report notes Doe had submitted, saying the notes appeared to be "cut and pasted" and incomplete.

On February 19, 2014, Doe did not come into work, and CDCR called to check on him. A watch commander at CDCR left a message saying if they didn't hear back from him they would send the police to his house for a "wellness check." At his deposition, Doe said he had sent a text message notifying CDCR he would be out that day, but learned later the text had not been received. Although he was home that day and no one ever knocked on his door, Doe believed the police had come to his property and that Dr. Castro had sent them.

On May 20, 2014, Doe wrote Dr. Castro an email asking for permission to leave work early because he was feeling ill. They had the following email exchange:

"[Doe:] Dr. Castro, I may have to leave early to see a doctor. I am anticipating leaving at 12 noon to go to the appointment.

[Castro:] You are not approved to leave. You are the only clinician available all day for [Ironwood] and as such designated PRN(1).

[Doe:] I am not feeling well and have already scheduled an appointment with a doctor for this afternoon at 2:00 p.m. What if it is contagious?

[Castro:] Only you know if this is a medical emergency.

[Doe:] I would like to go now."

Doe said he ended up leaving work to go to urgent care after he contacted a union representative for assistance.

On May 28, 2014, Dr. Castro believed Doe may have brought his personal cell phone into Ironwood (a serious rule violation) and had a watch commander escort Doe to his car. When Doe showed the watch commander that his phone was inside the car, he was allowed to go back to work.

On another occasion, Doe was assigned to be the "primary crisis person" even though he had given his supervisors advanced notice that he planned to attend a union meeting in Oakland that day. The primary crisis person is a position that rotates among Ironwood's clinicians. It entails monitoring and assessing high-risk inmates. Doe acknowledged at his deposition that all clinicians are expected to serve as a primary crisis person from time to time, but he felt work was intentionally "being piled on [him]" that day so he would have to miss his meeting. He admitted he had been able to attend the union meeting, but said he had to rush to the airport, and it had been a close call.

Around July 2014, Dr. Stoner became Doe's supervisor. In August 2014, Ironwood implemented the complete care model, and, as part of the reorganization, Doe was assigned to an office in the Bravo yard. When asked at his deposition if he had consulted with Doe before the move to see if it would pose a problem for him "in any respect," Dr. Stoner replied, "No, because actually it's not an option. I was assigning every clinician to be out on the yard." He said not only was Doe's reassignment part of the transition to the complete care model, but because Ironwood is considered a "heat institution" (it is located in Blythe), it "made sense for psychologists and all healthcare employers to be assigned to a particular space so they're not having to walk all over the place in the heat."

Dr. Stoner said that after Doe learned he was being transferred to the Bravo yard, he asked if he could remain in his current office, the one he had been using since his return from medical leave. He told Dr. Stoner he didn't like the Bravo yard office because it was too "noisy." Dr. Stoner referred Doe to the Return to Work department.

On August 12, 2014, Doe submitted a second accommodation form, this time requesting: (1) permission to stay in his current office; (2) a...