Nealy v. City of Santa Monica
| Citation | 234 Cal.App.4th 359,184 Cal.Rptr.3d 9 |
| Decision Date | 21 January 2015 |
| Docket Number | B246634 |
| Court | California Court of Appeals |
| Parties | Tony NEALY, Plaintiff and Appellant, v. CITY OF SANTA MONICA, Defendant and Respondent. |
Law Offices of Stephen A. Ebner, Stephen A. Ebner ; Law Offices of Stephen Love and Stephen Love, Calabasas, for Plaintiff and Appellant.
Marsha Jones Moutrie, City Attorney, Joseph Lawrence, Assistant City Attorney, Meishya Yang and Carol Ann Rohr, Deputy City Attorneys, for Defendant and Respondent.
Appellant Tony Nealy brought this action under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq. ) against his employer, the City of Santa Monica (the City), for disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. Nealy's disability arose as a result of knee injuries
while working for the City. The trial court granted the City's motion for summary judgment. We find no triable issues of material fact and affirm.
in 2003
Nealy began his employment with the City in 1996 as motorcoach cleaner in the transportation department. In 1997, he transferred departments and became a recycling worker, a position the City later retitled “solid waste equipment operator.”
Nealy injured his right knee in July 2003 when his foot slipped as he was moving a large bin full of food waste. A doctor declared him temporarily totally disabled after his injury. He had knee surgeries in 2003 and 2004. Nealy's temporary disability extended to May 25, 2005, when his doctor, Dr. Arthur Harris, released him to “light duty” work with the restriction that he could not push large trash bins, which weighed 750 pounds empty and could weigh up to 1,200 pounds when full.
The City had an accommodations committee to assist it in providing reasonable accommodations to employees who needed them. The committee was made up of representatives from human resources, risk management, the city attorney's office, and the department that had an employee needing accommodation. Nealy and his legal representative met with the accommodations committee in July 2005. At the meeting, Nealy asked to be returned to the solid waste department in either a clerical position or as the operator of a type of refuse collection vehicle, the one-person automated side loader (automated side loader). He had operated the automated side loader many times before he injured his knee
in 2003 and was familiar with it.
The committee advised Nealy the City would consider a lateral transfer or voluntary demotion. A committee member identified a vacant groundskeeper position. The City forwarded an essential job functions analysis (EFJA) for the groundskeeper position to Dr. Harris to see whether Nealy could safely perform the essential functions of the position. Dr. Harris approved the placement, and Nealy began working as a groundskeeper in October 2005.
Nealy met with the accommodations committee again in February 2006 because he was having trouble performing some of the groundskeeper duties. Specifically, he was having trouble climbing or descending stairs with no railings. His knee would sometimes buckle in these situations. The committee agreed to update the EFJA for groundskeeper and forward the revised EFJA to Dr. Harris for his review. In the meantime, Nealy's supervisor said he would limit Nealy's assignments until the issue was resolved. In March 2006, Dr. Harris reviewed the revised EFJA and opined Nealy could perform the groundskeeper position without restrictions.
Nevertheless, a committee member initiated efforts to find Nealy an alternative position as an equipment operator in his former department. In April 2006, the committee member requested an EFJA for an equipment operator position in street sweeping. Dr. Harris reviewed this EFJA and opined Nealy could not perform one essential job function of the position, that of emptying trash cans by hand, which could weigh anywhere from 25 to 60 pounds. The position required emptying 240 trash cans, twice a day on the Third Street Promenade or 400 trash cans citywide.
On or around August 1, 2006, Nealy was seen at a hospital emergency room for lower back pain. Nealy indicated he had injured himself on the job. He was on a small tractor in a baseball field, and when he stepped off the tractor, his knee buckled and he fell to the ground. He sustained an injury to his lower back. Dr. Harris declared him temporarily totally disabled for a few weeks and then cleared him to return to work on August 14, 2006, with restrictions. He was permitted to do “light duty, semi-sedentary office work,” but if such work was not available, Dr. Harris indicated Nealy should continue to be considered temporarily totally disabled. The City did not have any semisedentary office work available for Nealy, and he remained off work as temporarily totally disabled. Nealy never did return to work after his August 1, 2006 emergency room visit.
Nealy had a workers' compensation claim pending with the City. The agreed medical examiner in that case was Dr. Mitchel Silverman. Dr. Silverman issued a report in September 2008 in which he opined: Dr. Silverman issued a supplemental report in November 2008 in which he opined another knee surgery might be required.
Nealy met with the accommodations committee again in December 2008. The committee and Nealy discussed his limitations and agreed he could not return to the groundskeeper position. Nealy expressed his wish to return to a solid waste equipment operator position. Committee members expressed concerns about the demands of the job and his limitations. Specifically, workers who operated two-person vehicles alternated duties and assisted each other by pushing trash bins, and those who operated one-person vehicles sometimes needed to exit the vehicles and move trash bins not accessible to the automated lift. One committee member also expressed concern about the demands placed on the knee simply from operating the vehicle. Nealy informed the committee that his doctor had recommended further knee surgery, and, if that occurred, he would be unable to return to work for an indefinite period. Nealy did, in fact, have a third knee surgery in September 2009.
In April 2010, Dr. Silverman issued a report declaring Nealy “at maximum medical improvement.” Dr. Silverman stated Nealy “should be precluded from kneeling, bending, stooping, squatting, walking over uneven terrain, running, and prolonged standing relative to the right knee,” as well as climbing and heavy lifting. He opined Nealy could return to work with these restrictions.
In preparation for another accommodations meeting with Nealy, the City engaged a disability consulting firm (Monjaras & Wismeyer Group (Monjaras)) to facilitate the process and prepare an EFJA for the position of solid waste equipment operator. Vanessa Tosti of Monjaras prepared the EFJA in June 2010. In creating the EFJA, Tosti visited the City's solid waste facility, observed various solid waste equipment, and interviewed three supervisory members of the solid waste department. She also referred to the City's existing job description. The three supervisory employees and the City's human resources manager signed off on the EFJA Tosti prepared.
The City scheduled the accommodations meeting for July 19, 2010. Prior to the meeting, Monjaras sent Nealy the EFJA for solid waste equipment operator. Among other things, the EFJA indicated solid waste equipment operators were required to operate four different types of equipment, including the automated side loader. The City's written job description for the position also noted the operation of several different types of equipment among the position's “major duties.” The EFJA identified eight essential functions of the job: (1) “refuse and recyclable collection/disposal duties,” (2) “driving/equipment operation,” (3) “equipment maintenance/inspection,” (4) “communication/customer service/liaison,” (5) “records/logs,” (6) “heavy lifting,” (7) “training duties,” and (8) “attendance of meetings/trainings.” Under each essential function, it listed a paragraph or so of specific duties required for the job function. For example, under the job function “equipment maintenance/inspection,” the operator performed daily pre- and posttrip inspections of the vehicle, swept and vacuumed the interior of the vehicle, and emptied trash and debris from the bulkhead of the vehicle.
Present at the July 2010 accommodations meeting were Nealy and his legal representative, a resource recovery and recycling manager for the City, a resource recovery and recycling collections superintendent for the City, a deputy city attorney, a workers' compensation administrator, a risk manager, and a human resources manager. At the meeting, Nealy expressed his desire to return to the solid waste equipment operator position and said he did not necessarily agree with all of Dr. Silverman's restrictions. The City advised him that it was bound to comply with the restrictions imposed by Dr. Silverman, but it encouraged him to discuss with his attorney the possibility of having Dr....
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