Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 04/09/2019 09:32 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk
1 LINDA MILLER SAVITT, SBN 94164
lsavitt@brgslaw.com
2 SHANTA. KOTCHOUNIAN, SBN 245268
skotchounian@brgslaw.com
3 BALLARD ROSENBERG GOLPER & SA VITT, LLP
15760 Ventura Boulevard, 18 th Floor
4 Encino, CA 91436
Telephone: (818) 508-3700
5 Facsimile: (818) 506-4827
6 Attorneys for Defendant
HYDRAULICS INTERNATIONAL, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF LOS ANGELES
11 ARON MONTERROSO, CASE NO. BC 654053
12 Plaintiff, [Assigned to Hon. Maureen Duffy-Lewis
Dept. 38}
13 vs.
DEFENDANT'S TRIAL BRIEF RE
14 HYDRAULICS INTERNATIONAL, INC., a ASSOCIATIONAL DISABILITY
California Corporation; and DOES 1 through DISCRIMINATION AND FAILURE TO
15 50, inclusive, ENGAGE IN THE INTERACTIVE
PROCESS
16 Defendants.
17
18 Trial Date: April 4, 2019
Action Filed: March 14, 2017
19
20 II I
21 III
22 III
23 III
24 I II
25 II I
26 II I
27 I II
28 I II
610743 .1
1
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 I. PLAINTIFF'S CAUSE OF ACTION FOR ASSOCIATIONAL DISABILITY
2 DISCRIMINATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF
3 DOES NOT FALL WITHIN A PROTECTED CLASS
4 Associational disability discrimination claims have rarely been litigated, and the case of
5 Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698 affirmatively
6 analyzes such a claim. In Larimer, the Seventh Circuit delineated the parameters of a claim of
7 association discrimination as follows:
8 "Three types of situation are, we believe, within the intended scope of the rarely
litigated (this is our first case) association section. We' ll call them 'expense,'
9 'disability by association ,' and 'distraction .' They can be illustrated as follows: an
Q., employee is fired (or suffers some other adverse personnel action) because
10
'"'" (1) ("expense") his spouse has a disability that is costly to the employer because the
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the disease may be communicable such as when the employee' s homosexual
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have become infected, through sexual contact with the companion; (2b) (another
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that requires his attention, yet not so inattentive that to perform to his employer's
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= 19 aforementioned frameworks. There is no possibility of an "expense" issue, because he does not
20 claim that Hydraulics denied his mother with health insurance, or that she was even covered under
21 Hydraulics' health plan. As to the second category, "disability by association", Plaintiff provides
22 no basis to suggest that he could contract or develop any of his mother' s illness( es). Finally, as to
23 the third category, "distraction", Plaintiff makes no claim that his performance declined at work
24 due to his mother' s illness. Simply put, the essence of Plaintiffs disability claim is that he need not
25 comply with Hydraulics ' attendance policy because of his mother' s illness. As a matter of law,
26 Plaintiff cannot support his claim for disability discrimination, or an associated disability claim.
27 ///
28 III
610743.1 2
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 II. PLAINTIFF'S CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE
2 INTERACTIVE PROCESS FAILS AS A MATTER OF LAW BECAUSE THE
3 FEHA DOES NOT CREATE A DUTY TO ENGAGE IN THE INTERACTIVE
4 PROCESS WITH A NON-DISABLED EMPLOYEE ASSOCIATED WITH A
5 DISABLED PERSON
6 Plaintiffs cause of action for failure to engage in the interactive process based upon an
7 associational disability also lacks merit as a matter of law because the FEHA does not establish
8 any such duty. Indeed, even Castro-Ramirez v. Dependable Highway Express, Inc. (2016)
9 2 Cal.App.5th 1028, a significant case with regard to associational disability, did not find that FEHA
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13 Nor is there any subsequent authority establishing any such new law. (See e.g. Jackson v. Regents
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15 FEHA. In fact, it explicitly disclaimed deciding the "new" law Plaintiffs rely on"].).
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19 Significantly, under the ADA, an employer is not obliged to accommodate an employee who is
20 associated with a disabled person. (E.g., Tyndall v. National Education Centers (4th Cir. 1994) 31
21 F.3d 209, 214 [affirming summary judgment for the employer; the ADA "does not require an
22 employer to restructure an employee's work schedule to enable the employee to care for a relative
23 with a disability"]; Den Hartog v. Wasatch Academy (10th Cir. 1997) 129 F.3d 1076, 1084
24 [affirming summary judgment for the employer; the ADA "does not require an employer to make
25 any ' reasonable accommodation' to the disabilities ofrelatives or associates of an employee who is
26 not himself disabled"]; Larimer v. IBM Corp. (7th Cir. 2004) 370 F.3d 698,700 ["The right to an
27 accommodation, being limited to disabled employees, does not extend to a nondisabled associate of
28 a disabled person"]; Erdman v. Nationwide Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510 ["the
610743. 1 3
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 association provision does not obligate employers to accommodate the schedule of an employee
2 with a disabled relative"].)
3 The California Legislature has not stated an intent that FEHA depart from the ADA by
4 requiring an employer to engage in the interactive process with, and accommodate a nondisabled
5 employee with a disabled family member. 1
6 Government Code section 12940 provides:
7 (n) For an employer or other entity covered by this part to fail to engage in a timely,
good faith, interactive process with the employee or applicant to determine effective
8 reasonable accommodations, if any, in response to a request for reasonable
accommodation by an employee or applicant with a known physical or mental
9
disability or known medical condition. Cal. Gov. Code § 12940(n) (emphasis
10 added).
11 It is clear that Government Code section 12940(n) expressly applies exclusively to an
12 employee or applicant with a known disability or medical condition. Therefore, the intent of the
13 Legislature, as expressed through the plain language of the statute, is that an employer does not have
14 a duty to engage in the interactive process with an employee because of the disability of someone
15 else, including a relative.
16 The California Legislature has recognized that the obligation to engage in the interactive
17 process and the duty to accommodate was adopted from federal regulations and that federal
18 precedent should inform a court' s decision in interpreting Government Code sections 12940(m) and
19 (n). See Cal. Gov. Code§ 12926.l(e). Indeed, the Senate Judiciary Committee in discussing AB
20 2222 (which added Government Code section 12940(n) and modified the definitions of disability
21 under the FEHA) stated that "the FEHA contains the same basic reasonable accommodation
22 definitions and requirements that are found in the ADA. " Assem. Bill 2222, 1999-2000 Reg. Sess.
23 (Cal. 2000). The bill ' shistory thus makes clear that the Legislature intended the duty to
24 accommodate and the duty to engage in the good faith interactive process to be interpreted and
25
26
27
1
Indeed, the Legislature has already repudiated such a duty through its failure to enact SB836,
28 ABlO0l , AB1999 or SB404 into law.
610743.1 4
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 applied in keeping with the federal interpretation of the parallel provisions of the Americans with
2 Disabilities Act ("ADA").
3 California courts have repeatedly held that " [b ]ecause the California Legislature has
4 modeled the reasonable accommodation requirements of sections 12940(m) and 12940(n) on the
5 parallel federal requirements, the EEOC's definition of 'reasonable accommodation"' guides the
6 interpretation of the state law. Scotch v. Art Institute of California-Orange County, Inc., 173 Cal.
7 App. 4th 986, 1010 (2009) (adopting the definition of reasonable accommodation "found in the
8 federal Equal Employment Opportunity Commission (EEOC) interpretive guidance on the
9 Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA)," rejecting plaintiffs
10 claim for failure to accommodate); Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th
11 952, 973-974, 980-981 (2008) (same). Thus, the interactive process and the duty to reasonably
12 accommodate under the FEHA should be interpreted in keeping with federal authority.
13 The EEOC has specifically addressed and rejected the idea that an employer is obligated to
14 accommodate or engage in the interactive process with an employee based on the employee's
15 association with an individual with a disability. In the Appendix to the federal regulations
16 promulgated by the EEOC regarding the proper interpretation and application of the ADA, the
17 EEOC explicitly states:
18 It should be noted, however, that an employer need not provide the applicant or
employee without a disability with a reasonable accommodation because that duty
19 only applies to qualified applicants or employees with disabilities. Thus, for
example, an employee would not be entitled to a modified work schedule as an
20 accommodation to enable the employee to care for a spouse with a disability.
21 29 C.F.R. pt. 1630, App. (citing S. Rep . No. 116, 101st Cong., 1st Sess. 30 (1989); H.R. Rep.
22 No. 485 part 2, 101st Cong., 2d Sess. 61-62 (1990); H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess.
23 38-39 (1990) (emphasis added). The EEOC thus interprets the parallel provisions of the ADA as
24 being limited to an obligation to engage in a good faith interactive process with and accommodate
25 an employee or applicant with a known or perceived disability. 29 C.F.R. § 1630, App. (emphasis
26 added)
27 Federal courts have uniformly adopted the EEOC's position and concluded that an employer
28 has no duty to accommodate an employee based on the disability of a relative. In so doing, the court
610743 .1 5
DEFENDANT'S TRIAL BRIEF RE ASSOCJA TIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 in Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997) cited the House Committee on
2 Education and Labor's Report on H.R. 2273 , which provided the following illustration:
3 Assume, for example that an applicant applies for a job and discloses to the
employer that his or her spouse has a disability. The employer believes the applicant
4 is qualified for the job. The employer, however, assuming without foundation that
the applicant will have to miss work or frequently leave work early or both, in order
5 to care for his or her spouse, declines to hire the individual for such reasons. Such
a refusal is prohibited by this subparagraph.
6
In contrast, assume that the employer hires the applicant. If he or she violates a
7 neutral employer policy concerning attendance or tardiness, he or she may be
dismissed even if the reason for the absence or tardiness is to care for the
8 spouse. The employer need not provide any accommodation to the nondisabled
employee. The individuals covered under this section are any individuals who are
9 discriminated against because of their known association with an individual with a
disability. Hartog, 129 F.3d at 1082 (citing H.R. Rep. No. 101-485, pt. 2, at 61-62
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12 with a disabled person, specifically relying on the fact that the duty to accommodate only applies to
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= 19 2004); Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, (11th Cir. 1999) (holding
20 that the plaintiff failed to establish a prima facie case of discrimination and noting that "if [an
21 employee] violates a neutral employer policy concerning attendance or tardiness, he or she may
22 be dismissed even if the reason for the absence or tardiness is to care for the [disabled associate].")
23 (emphasis added).
24 III
25 III
26 III
27 ///
28 III
610743. 1 6
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 Put simply, there is no such thing as a claim for failure to engage in the interactive process
2 based on an employee' s relationship with someone who is disabled. Plaintiffs claim for failure to
3 engage in the interactive process must fail as a matter of law.
4 DATED: Aoril 9, 2019 BALLARD ROSENBERG GOLPER & SAVITT, LLP
5
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6 By: _.,.c;_-y
7 LINDA MILLER SAVITT
SHANTA. KOTCHOUNIAN
8 Attorneys for Defendant HYDRAULICS
INTERNATIONAL, INC.
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610743 .1 7
DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION
ANO FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen years and not a party to the within action; my business address is 15760 Ventura Boulevard,
4 18th Floor, Encino, California 91436.
5 On April 9, 2019, I served the following document(s) described as DEFENDANT'S TRIAL
BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO
6 ENGAGE IN THE INTERACTIVE PROCESS, on the interested parties in this action by placing
true copies thereof enclosed in sealed envelopes addressed as follows:
7
Co-Counsel for Plaintiff Co-Counsel for Plaintiff
8
Andrew L. Treger, Esq. Hugo Gamez, Esq.
9 Baer Treger LLP Law Offices of Hugo Gamez
1999 A venue of the Stars, Suite 1100 1999 A venue of the Stars, Suite 1100
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..:l 10 Los Angeles, CA 90067 Los Angeles, CA 90067
..:l Tel: (310) 226-7570 Tel: (424) 442-0623
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A Treger@.baertreger.com
Fax: (310) 693-2538
Hugo@.hgamezlaw.com
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: L, Co-Counsel for Plaintiff
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1.1.l J. Bernard Alexander, III
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Los Angeles, CA 90067
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§5 17 balexander@akgllp.com
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BY E-MAIL OR ELECTRONIC TRANSMISSION: By electronic mail transmission by
19 transmitting a PDF format copy of such document to each such person at the e-mail address listed
below their addresses. The document was transmitted by electronic transmission and such
20 transmission was reported as complete and without error.
21 I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
22
23 Executed on April 9, 2019, at Encino, Cal£ i ' L {'0,,4,f_
24
25 Lisa Chiarella
26
27
28
610743.1
PROOF OF SERVICE
Preview
Electronically FILED by Superior Court of California, County of Los Angeles on 04/09/2019 09:32 AM Sherri R. Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk 1 LINDA MILLER SAVITT, SBN 94164 lsavitt@brgslaw.com 2 SHANTA. KOTCHOUNIAN, SBN 245268 skotchounian@brgslaw.com 3 BALLARD ROSENBERG GOLPER & SA VITT, LLP 15760 Ventura Boulevard, 18 th Floor 4 Encino, CA 91436 Telephone: (818) 508-3700 5 Facsimile: (818) 506-4827 6 Attorneys for Defendant HYDRAULICS INTERNATIONAL, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES 11 ARON MONTERROSO, CASE NO. BC 654053 12 Plaintiff, [Assigned to Hon. Maureen Duffy-Lewis Dept. 38} 13 vs. DEFENDANT'S TRIAL BRIEF RE 14 HYDRAULICS INTERNATIONAL, INC., a ASSOCIATIONAL DISABILITY California Corporation; and DOES 1 through DISCRIMINATION AND FAILURE TO 15 50, inclusive, ENGAGE IN THE INTERACTIVE PROCESS 16 Defendants. 17 18 Trial Date: April 4, 2019 Action Filed: March 14, 2017 19 20 II I 21 III 22 III 23 III 24 I II 25 II I 26 II I 27 I II 28 I II 610743 .1 1 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 I. PLAINTIFF'S CAUSE OF ACTION FOR ASSOCIATIONAL DISABILITY 2 DISCRIMINATION FAILS AS A MATTER OF LAW BECAUSE PLAINTIFF 3 DOES NOT FALL WITHIN A PROTECTED CLASS 4 Associational disability discrimination claims have rarely been litigated, and the case of 5 Larimer v. International Business Machines Corp. (7th Cir. 2004) 370 F.3d 698 affirmatively 6 analyzes such a claim. In Larimer, the Seventh Circuit delineated the parameters of a claim of 7 association discrimination as follows: 8 "Three types of situation are, we believe, within the intended scope of the rarely litigated (this is our first case) association section. We' ll call them 'expense,' 9 'disability by association ,' and 'distraction .' They can be illustrated as follows: an Q., employee is fired (or suffers some other adverse personnel action) because 10 '"'" (1) ("expense") his spouse has a disability that is costly to the employer because the '~ "'" spouse is covered by the company' s health plan; (2a) ("disability by association") -;;..< 8"' r"" ..J 11 the disease may be communicable such as when the employee' s homosexual rJ)"-- 12 companion is infected with HIV and the employer fears that the employee may also : L, ~~ have become infected, through sexual contact with the companion; (2b) (another w;J Q.,Q "' 13 example of disability by association) one of the employee ' s blood relatives has a '"'" ~ $ 0 c.,~ ·2 disabling ailment that has a genetic component and the employee is likely to develop < 0 ... 14 c.,Gi:::; the disability as well (maybe the relative is an identical twin) ; (3) ("distraction") the 52) .i:: employee is somewhat inattentive at work because his spouse or child has a disability =co~ '"" 2 0 ~ u • 15 that requires his attention, yet not so inattentive that to perform to his employer's '"" rJ) ~ "' ai 16 satisfaction he would need an accommodation, perhaps by being allowed to work O> .i:: ~ shorter hours." Id. at 700. (Emphasis added). Q ~ .i::- 17 j Here, Plaintiff does not allege discriminatory treatment falling into any of the < '"'" 18 = 19 aforementioned frameworks. There is no possibility of an "expense" issue, because he does not 20 claim that Hydraulics denied his mother with health insurance, or that she was even covered under 21 Hydraulics' health plan. As to the second category, "disability by association", Plaintiff provides 22 no basis to suggest that he could contract or develop any of his mother' s illness( es). Finally, as to 23 the third category, "distraction", Plaintiff makes no claim that his performance declined at work 24 due to his mother' s illness. Simply put, the essence of Plaintiffs disability claim is that he need not 25 comply with Hydraulics ' attendance policy because of his mother' s illness. As a matter of law, 26 Plaintiff cannot support his claim for disability discrimination, or an associated disability claim. 27 /// 28 III 610743.1 2 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 II. PLAINTIFF'S CAUSE OF ACTION FOR FAILURE TO ENGAGE IN THE 2 INTERACTIVE PROCESS FAILS AS A MATTER OF LAW BECAUSE THE 3 FEHA DOES NOT CREATE A DUTY TO ENGAGE IN THE INTERACTIVE 4 PROCESS WITH A NON-DISABLED EMPLOYEE ASSOCIATED WITH A 5 DISABLED PERSON 6 Plaintiffs cause of action for failure to engage in the interactive process based upon an 7 associational disability also lacks merit as a matter of law because the FEHA does not establish 8 any such duty. Indeed, even Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 9 2 Cal.App.5th 1028, a significant case with regard to associational disability, did not find that FEHA p.. ..J 10 establishes a separate duty to reasonably accommodate employees who associate with a disabled ..J ~ !--< 11 person. (Castro-Ramirez, 2 Cal.App.5th at p. 1038 ["We do not decide whether FEHA establishes ....>- 0 "' <3 r:r., ..... 12 a separate duty to reasonably accommodate employees who associate with a disabled person."].) :~ L, ~~ p..S! "' 13 Nor is there any subsequent authority establishing any such new law. (See e.g. Jackson v. Regents ..J w.J:, 0 -~ c;,;1 < 0... 14 of the Univ. of Cal. (2017) 2017 U.S. Dist. LEXIS 42603 , *5 ["Castro-Ramirez did not broaden c;, ~ i;j 0::SU la;l IXl O a:i~ • 15 FEHA. In fact, it explicitly disclaimed deciding the "new" law Plaintiffs rely on"].). :z ;;i u ~ ~ ai 16 Because the FEHA provisions relating to disability discrimination are, in fact, based on the O > CZ:: ~ § '.3 17 ADA and other federal law, decisions interpreting federal antidiscrimination laws are relevant in < ..J ..J < 18 interpreting the FEHA's similar provisions. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235.) IXl 19 Significantly, under the ADA, an employer is not obliged to accommodate an employee who is 20 associated with a disabled person. (E.g., Tyndall v. National Education Centers (4th Cir. 1994) 31 21 F.3d 209, 214 [affirming summary judgment for the employer; the ADA "does not require an 22 employer to restructure an employee's work schedule to enable the employee to care for a relative 23 with a disability"]; Den Hartog v. Wasatch Academy (10th Cir. 1997) 129 F.3d 1076, 1084 24 [affirming summary judgment for the employer; the ADA "does not require an employer to make 25 any ' reasonable accommodation' to the disabilities ofrelatives or associates of an employee who is 26 not himself disabled"]; Larimer v. IBM Corp. (7th Cir. 2004) 370 F.3d 698,700 ["The right to an 27 accommodation, being limited to disabled employees, does not extend to a nondisabled associate of 28 a disabled person"]; Erdman v. Nationwide Ins. Co. (3d Cir. 2009) 582 F.3d 500, 510 ["the 610743. 1 3 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 association provision does not obligate employers to accommodate the schedule of an employee 2 with a disabled relative"].) 3 The California Legislature has not stated an intent that FEHA depart from the ADA by 4 requiring an employer to engage in the interactive process with, and accommodate a nondisabled 5 employee with a disabled family member. 1 6 Government Code section 12940 provides: 7 (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective 8 reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental 9 disability or known medical condition. Cal. Gov. Code § 12940(n) (emphasis 10 added). 11 It is clear that Government Code section 12940(n) expressly applies exclusively to an 12 employee or applicant with a known disability or medical condition. Therefore, the intent of the 13 Legislature, as expressed through the plain language of the statute, is that an employer does not have 14 a duty to engage in the interactive process with an employee because of the disability of someone 15 else, including a relative. 16 The California Legislature has recognized that the obligation to engage in the interactive 17 process and the duty to accommodate was adopted from federal regulations and that federal 18 precedent should inform a court' s decision in interpreting Government Code sections 12940(m) and 19 (n). See Cal. Gov. Code§ 12926.l(e). Indeed, the Senate Judiciary Committee in discussing AB 20 2222 (which added Government Code section 12940(n) and modified the definitions of disability 21 under the FEHA) stated that "the FEHA contains the same basic reasonable accommodation 22 definitions and requirements that are found in the ADA. " Assem. Bill 2222, 1999-2000 Reg. Sess. 23 (Cal. 2000). The bill ' shistory thus makes clear that the Legislature intended the duty to 24 accommodate and the duty to engage in the good faith interactive process to be interpreted and 25 26 27 1 Indeed, the Legislature has already repudiated such a duty through its failure to enact SB836, 28 ABlO0l , AB1999 or SB404 into law. 610743.1 4 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 applied in keeping with the federal interpretation of the parallel provisions of the Americans with 2 Disabilities Act ("ADA"). 3 California courts have repeatedly held that " [b ]ecause the California Legislature has 4 modeled the reasonable accommodation requirements of sections 12940(m) and 12940(n) on the 5 parallel federal requirements, the EEOC's definition of 'reasonable accommodation"' guides the 6 interpretation of the state law. Scotch v. Art Institute of California-Orange County, Inc., 173 Cal. 7 App. 4th 986, 1010 (2009) (adopting the definition of reasonable accommodation "found in the 8 federal Equal Employment Opportunity Commission (EEOC) interpretive guidance on the 9 Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA)," rejecting plaintiffs 10 claim for failure to accommodate); Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 11 952, 973-974, 980-981 (2008) (same). Thus, the interactive process and the duty to reasonably 12 accommodate under the FEHA should be interpreted in keeping with federal authority. 13 The EEOC has specifically addressed and rejected the idea that an employer is obligated to 14 accommodate or engage in the interactive process with an employee based on the employee's 15 association with an individual with a disability. In the Appendix to the federal regulations 16 promulgated by the EEOC regarding the proper interpretation and application of the ADA, the 17 EEOC explicitly states: 18 It should be noted, however, that an employer need not provide the applicant or employee without a disability with a reasonable accommodation because that duty 19 only applies to qualified applicants or employees with disabilities. Thus, for example, an employee would not be entitled to a modified work schedule as an 20 accommodation to enable the employee to care for a spouse with a disability. 21 29 C.F.R. pt. 1630, App. (citing S. Rep . No. 116, 101st Cong., 1st Sess. 30 (1989); H.R. Rep. 22 No. 485 part 2, 101st Cong., 2d Sess. 61-62 (1990); H.R. Rep. No. 485 part 3, 101st Cong., 2d Sess. 23 38-39 (1990) (emphasis added). The EEOC thus interprets the parallel provisions of the ADA as 24 being limited to an obligation to engage in a good faith interactive process with and accommodate 25 an employee or applicant with a known or perceived disability. 29 C.F.R. § 1630, App. (emphasis 26 added) 27 Federal courts have uniformly adopted the EEOC's position and concluded that an employer 28 has no duty to accommodate an employee based on the disability of a relative. In so doing, the court 610743 .1 5 DEFENDANT'S TRIAL BRIEF RE ASSOCJA TIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 in Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997) cited the House Committee on 2 Education and Labor's Report on H.R. 2273 , which provided the following illustration: 3 Assume, for example that an applicant applies for a job and discloses to the employer that his or her spouse has a disability. The employer believes the applicant 4 is qualified for the job. The employer, however, assuming without foundation that the applicant will have to miss work or frequently leave work early or both, in order 5 to care for his or her spouse, declines to hire the individual for such reasons. Such a refusal is prohibited by this subparagraph. 6 In contrast, assume that the employer hires the applicant. If he or she violates a 7 neutral employer policy concerning attendance or tardiness, he or she may be dismissed even if the reason for the absence or tardiness is to care for the 8 spouse. The employer need not provide any accommodation to the nondisabled employee. The individuals covered under this section are any individuals who are 9 discriminated against because of their known association with an individual with a disability. Hartog, 129 F.3d at 1082 (citing H.R. Rep. No. 101-485, pt. 2, at 61-62 Q., ..J 10 (1990), reprinted in 1990 U.S.C.C.A.N. 303 , 343-44) (emphasis added). ..J ~ -> ...§" E-- ~ 11 The court found no duty to accommodate an employee based on that employee' s association 12 with a disabled person, specifically relying on the fact that the duty to accommodate only applies to :~ L, ~~ g Q., °':!: 13 "an otherwise qualified individual with a disability who is an applicant or employee." Hartog, 129 ..J LU 0 • Z <.,~<~.. 14 F.3d at 1083-1085; see also Tyndall, 31 F. 3d at 214-215 (relying on 29 C.F.R. section 1630, App. <.,~ ~ i;:i:: :lu =co~ '1;l O " 15 The 4th Circuit held that because the employer applied a non-discriminatory attendance policy in z ~ O> rfj ;:iu 16 a facially neutral fashion , the/act that the employee missed work to care/or a disabled relative i::i:: ~ A :;; i::i:: - 17 did not render the termination discriminatory or otherwise unlawful.); Erdman v. Nationwide < ..J ..J < 18 Insurance Co., 582 F.3d 500, 509-11 (3rd Cir. 2009); Larimer v. IBM, 370 F.3d 698, 700 (7th Cir. = 19 2004); Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, (11th Cir. 1999) (holding 20 that the plaintiff failed to establish a prima facie case of discrimination and noting that "if [an 21 employee] violates a neutral employer policy concerning attendance or tardiness, he or she may 22 be dismissed even if the reason for the absence or tardiness is to care for the [disabled associate].") 23 (emphasis added). 24 III 25 III 26 III 27 /// 28 III 610743. 1 6 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 Put simply, there is no such thing as a claim for failure to engage in the interactive process 2 based on an employee' s relationship with someone who is disabled. Plaintiffs claim for failure to 3 engage in the interactive process must fail as a matter of law. 4 DATED: Aoril 9, 2019 BALLARD ROSENBERG GOLPER & SAVITT, LLP 5 · ,',, ./ ,....... ---- ..•. ---· £ _____ 6 By: _.,.c;_-y 7 LINDA MILLER SAVITT SHANTA. KOTCHOUNIAN 8 Attorneys for Defendant HYDRAULICS INTERNATIONAL, INC. 9 Q., ..J 10 ..J E--" -< E-< :> "' g ..J en "" 11 12 : w ~ '° ~2 13 Q., 0"' ..J Lil:!: 0 -~ ~ ;l < 0 ... 14 ~ i;j :; w O:s 0• i:i:: 15 CQ al~ z ;:; u ~ ~ ai 16 O> i:i:: 55 ~ f;; i:i:: - 17 < ..J ..J < 18 CQ 19 20 21 22 23 24 25 26 27 28 610743 .1 7 DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION ANO FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 15760 Ventura Boulevard, 4 18th Floor, Encino, California 91436. 5 On April 9, 2019, I served the following document(s) described as DEFENDANT'S TRIAL BRIEF RE ASSOCIATIONAL DISABILITY DISCRIMINATION AND FAILURE TO 6 ENGAGE IN THE INTERACTIVE PROCESS, on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: 7 Co-Counsel for Plaintiff Co-Counsel for Plaintiff 8 Andrew L. Treger, Esq. Hugo Gamez, Esq. 9 Baer Treger LLP Law Offices of Hugo Gamez 1999 A venue of the Stars, Suite 1100 1999 A venue of the Stars, Suite 1100 Q., ..:l 10 Los Angeles, CA 90067 Los Angeles, CA 90067 ..:l Tel: (310) 226-7570 Tel: (424) 442-0623 ~ ->< "'g. ., E- 11 Fax: (310) 226-7571 A Treger@.baertreger.com Fax: (310) 693-2538 Hugo@.hgamezlaw.com VJ u. 12 : L, Co-Counsel for Plaintiff '11;J Q., ~~ Q °'!S 13 ..:l 1.1.l J. Bernard Alexander, III 0 -~ c.,;l < 0 u. 14 Tracy L. Fehr c., ~ i:; Alexander Krakow + Glick LLP a: w su O i CQ o:l • 15 1900 Avenue of the Stars, Suite 900 ;z ;;i u Los Angeles, CA 90067 w i= ai VJ O> ~ 16 Tel: (310) 394-0888 a: ~ Fax: (310) 394-0811 §5 17 balexander@akgllp.com < ..:l tfehr@.akgllp.com ..:l < 18 CQ BY E-MAIL OR ELECTRONIC TRANSMISSION: By electronic mail transmission by 19 transmitting a PDF format copy of such document to each such person at the e-mail address listed below their addresses. The document was transmitted by electronic transmission and such 20 transmission was reported as complete and without error. 21 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 22 23 Executed on April 9, 2019, at Encino, Cal£ i ' L {'0,,4,f_ 24 25 Lisa Chiarella 26 27 28 610743.1 PROOF OF SERVICE