On March 24, 2014 a
Party Discovery
was filed
involving a dispute between
Steuer, Paula,
and
South San Francisco Unified School District,
for (36) Unlimited Wrongful Termination
in the District Court of San Mateo County.
Preview
Linda J.
John
Lynch, Esq.,-SBN
A. Shupe, Esq.,
88811
SBN 87716 PXLZIl<
SAN litVysinger v. Automobile Club ofSo California
8 (2007) 157 Cal. App 4th 413, 424-425)
9 The]uty instiuction approved by the Judicial Council for causes of action for failure to
10 engage in the inteiactive process is CACI 2546. Element 4 adheres to the statutory requirement that
11 Plaintiff show she "requested that„. defendant make seasonable accommodation for [her disability]
12 so that she would be able to pet form the essential job requirements."
13 The Govenunent Code does not create a separate cause of action for faihue to engage in the
14 inteiactive process over a non-existent, perceived disability. The concept of "peiceived disability"
t 15 has instead been statutorily cieated for a disparate tieatment cause of action. Defendant has no
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16 objection to instructing on the dispaiate tteatment claim based on a supposed perceived disability.
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17 Defendant, however, objects to instructmg on failure to engage in the inteiactive process iegarding a
5 ~
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'O 18 perceived disability in this case for the following ieasons.
19 1. There is no statutoiy claim for failuie to engage in the interactive process regarding anon-
20 existent peiceived disabihty. The purpose of the inteiactive process is to assist the employer and
21 employee in deteimming what accommodations aie required. Here, Plaintiffhas taken the position
22 that she has no disability, and that she does not iequite any accommodation. (Plaintiff's iesponses to
23 Special Interrogatories, 1 and 2, which aie in evidence) She is pievented by a motion in limine order
24 ftom aigumg that she is disabled. A non-disabled employee has no right to demand accommodations.
25 There would be no purpose whatsoever for an inteiactive process where no accommodation is
26 requested or needed.
27 2 Plaintiffwillai gue that Gelfo v. Lockheed Martin Co~ p (2006) 140 Cal.. App.4th 34
28 approves a cause of action foi failuie to engage in the mteiactive piocess whenever theie is aclaim
Defendant's Motion for Nonsuit at Close of EvKlence Page 2
1 of perceived disability. We disagiee. In Gelfo, the plaintiffhad a long history of lower back injuries
2 and symptoms resulting in a QIW finding of 75'/o disability, and separation fiom his employment
3 thiough the vocational rehabilitation piocess (140 Cal. App.4th at 41-42) After a few yeats offwoik
4 Mr. Gelfo felt much better, and applied to Lockheed for a diffeient job. Lockheed was iinpiessed
5 enough with Plaintiff's abilities to offei hini a job On ieview of his prior iecords, however,
6 Lockheed withdiew the offei because it felt Plaintiff was disabled Lockeed conceded that its
7 withdrawal of the job offer was based on it regaiding Plaintiffas disabled. (140 Cal. App.4th at 49-
8 50) In fact the evidence was so strong that the Appellate Couit ruled that the trial couit should have
9 dii ected a verdict for Plaintiff on the "iegarded as" element. (Id.)
10 Gelfo did not consider or iule upon oui factual record.,Here, Mis Steuei adamantly denies
11 any disability, denies any need for accommodation, and unlike in Gelfo these is no history of
12 disabling injury More to the point, Geljo did not rule that element 4 of the CACI instruction should
13 be eliminated. The CACI 2546 "use note" refers to footnote 21 of the Gelfo case when mentioning
14 perceived disability cases. That footnote provides:
15 "FEHA's iefeience to a "known" disability is read to mean a disability of which
CI
C) the employei has become awaie, whether because it is obvious, the employee has
16 biought it to the it is based
Ch
employer's attention, on. the employer's own peiception
0o
17
- mistaken oi not - of the existence of a disabling condition or, perhaps as heie,
O
the employer has come upon information indicating the piesence of a disability.
18
(140 Cal. App 4th at 64, n. 21) This footnote merely points out that "known", in element 3 of the
19
instruction, includes wheie the employei is awaie becuase it peiceives a disabihty Footnote 21 of
20
Ge1fo does not direct or even suggest abandonment of element 4 of CACI 2546. Defendant submits
21
that re-writing CACI 2546 to stiike element 4 would be piejudicial error.
22
3. Regaidless of the foregoing, the Fiist Appellate District has ruled that to pievail on a cause
23
of action for failing to engage in the inteiactive process, the plaintiffmust piove that a seasonable
24
accommodation was available. (Nadaf Rahrov v. The Nieinan Marcus Group, Inc. (2008) 166 Cal.
25
App.4th 952, 980-985) Our iecoid contains no evidence which fiom which a jury could deteimine
26
that a reasonable accommodation was available. Decisions of the First Appellate District oui binding
27
on this trial court.
28
Defendant's Motion for Nonsuit nt Closeof Evidence Page 3
CONCLVSION
For each of the foregoing seasons, Defendant respectfully tequests that non-suit be gtanted as
4 to Plaintiffs claim for failure to engage in the interactive ptocess
6 Dated: December 10, 2012 LYNCH AND SHVPK, LLP
By:
Jo "hupe, attorne efendant
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Defendant's Motion foi Nonsuit at Close of Evtdenee Page 4
Document Filed Date
December 11, 2015
Case Filing Date
March 24, 2014
Category
(36) Unlimited Wrongful Termination
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Preview
Linda J. John Lynch, Esq.,-SBN A. Shupe, Esq., 88811 SBN 87716 PXLZIl< SAN litVysinger v. Automobile Club ofSo California 8 (2007) 157 Cal. App 4th 413, 424-425) 9 The]uty instiuction approved by the Judicial Council for causes of action for failure to 10 engage in the inteiactive process is CACI 2546. Element 4 adheres to the statutory requirement that 11 Plaintiff show she "requested that„. defendant make seasonable accommodation for [her disability] 12 so that she would be able to pet form the essential job requirements." 13 The Govenunent Code does not create a separate cause of action for faihue to engage in the 14 inteiactive process over a non-existent, perceived disability. The concept of "peiceived disability" t 15 has instead been statutorily cieated for a disparate tieatment cause of action. Defendant has no Xg C> CO '0 C> 16 objection to instructing on the dispaiate tteatment claim based on a supposed perceived disability. etPq 0 m 17 Defendant, however, objects to instructmg on failure to engage in the inteiactive process iegarding a 5 ~ Vl 'O 18 perceived disability in this case for the following ieasons. 19 1. There is no statutoiy claim for failuie to engage in the interactive process regarding anon- 20 existent peiceived disabihty. The purpose of the inteiactive process is to assist the employer and 21 employee in deteimming what accommodations aie required. Here, Plaintiffhas taken the position 22 that she has no disability, and that she does not iequite any accommodation. (Plaintiff's iesponses to 23 Special Interrogatories, 1 and 2, which aie in evidence) She is pievented by a motion in limine order 24 ftom aigumg that she is disabled. A non-disabled employee has no right to demand accommodations. 25 There would be no purpose whatsoever for an inteiactive process where no accommodation is 26 requested or needed. 27 2 Plaintiffwillai gue that Gelfo v. Lockheed Martin Co~ p (2006) 140 Cal.. App.4th 34 28 approves a cause of action foi failuie to engage in the mteiactive piocess whenever theie is aclaim Defendant's Motion for Nonsuit at Close of EvKlence Page 2 1 of perceived disability. We disagiee. In Gelfo, the plaintiffhad a long history of lower back injuries 2 and symptoms resulting in a QIW finding of 75'/o disability, and separation fiom his employment 3 thiough the vocational rehabilitation piocess (140 Cal. App.4th at 41-42) After a few yeats offwoik 4 Mr. Gelfo felt much better, and applied to Lockheed for a diffeient job. Lockheed was iinpiessed 5 enough with Plaintiff's abilities to offei hini a job On ieview of his prior iecords, however, 6 Lockheed withdiew the offei because it felt Plaintiff was disabled Lockeed conceded that its 7 withdrawal of the job offer was based on it regaiding Plaintiffas disabled. (140 Cal. App.4th at 49- 8 50) In fact the evidence was so strong that the Appellate Couit ruled that the trial couit should have 9 dii ected a verdict for Plaintiff on the "iegarded as" element. (Id.) 10 Gelfo did not consider or iule upon oui factual record.,Here, Mis Steuei adamantly denies 11 any disability, denies any need for accommodation, and unlike in Gelfo these is no history of 12 disabling injury More to the point, Geljo did not rule that element 4 of the CACI instruction should 13 be eliminated. The CACI 2546 "use note" refers to footnote 21 of the Gelfo case when mentioning 14 perceived disability cases. That footnote provides: 15 "FEHA's iefeience to a "known" disability is read to mean a disability of which CI C) the employei has become awaie, whether because it is obvious, the employee has 16 biought it to the it is based Ch employer's attention, on. the employer's own peiception 0o 17 - mistaken oi not - of the existence of a disabling condition or, perhaps as heie, O the employer has come upon information indicating the piesence of a disability. 18 (140 Cal. App 4th at 64, n. 21) This footnote merely points out that "known", in element 3 of the 19 instruction, includes wheie the employei is awaie becuase it peiceives a disabihty Footnote 21 of 20 Ge1fo does not direct or even suggest abandonment of element 4 of CACI 2546. Defendant submits 21 that re-writing CACI 2546 to stiike element 4 would be piejudicial error. 22 3. Regaidless of the foregoing, the Fiist Appellate District has ruled that to pievail on a cause 23 of action for failing to engage in the inteiactive process, the plaintiffmust piove that a seasonable 24 accommodation was available. (Nadaf Rahrov v. The Nieinan Marcus Group, Inc. (2008) 166 Cal. 25 App.4th 952, 980-985) Our iecoid contains no evidence which fiom which a jury could deteimine 26 that a reasonable accommodation was available. Decisions of the First Appellate District oui binding 27 on this trial court. 28 Defendant's Motion for Nonsuit nt Closeof Evidence Page 3 CONCLVSION For each of the foregoing seasons, Defendant respectfully tequests that non-suit be gtanted as 4 to Plaintiffs claim for failure to engage in the interactive ptocess 6 Dated: December 10, 2012 LYNCH AND SHVPK, LLP By: Jo "hupe, attorne efendant 10 12 13 14 15 Fh '0 16 g ~0g~ C CP 17 ma 18 19 20 21 22 23 24 25 27 Defendant's Motion foi Nonsuit at Close of Evtdenee Page 4