Filed 1/21/15; pub. order 2/13/15 (see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


TONY NEALY,                                               B246634

         Plaintiff and Appellant,                         (Los Angeles County
                                                          Super. Ct. No. BC454516)
         v.

CITY OF SANTA MONICA,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Mary
Ann Murphy, Judge. Affirmed.


         Law Offices of Stephen A. Ebner, Stephen A. Ebner; Law Offices of Stephen
Love and Stephen Love 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.
                              FACTS AND PROCEDURE
1. Nealy’s Knee Injury in 2003
       Nealy began his employment with the City in 1996 as motor coach 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.
2. Accommodations Meeting in 2005
       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.



                                              2
       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.
3. Accommodations Meeting in 2006 and Second Injury
       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 3rd 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


                                             3
continue to be considered temporarily totally disabled. The City did not have any semi-
sedentary 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.
4. Accommodations Meeting in 2008
       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: “He [Nealy] can ambulate short distances. He
should not do prolonged walking or prolonged standing of more than forty-five minutes
out of every hour. He should avoid bending, stooping, squatting, and kneeling regarding
the right knee. He should avoid very heavy lifting regarding the lumbar spine. [¶] He
could return to the job he wants to perform, that is, sitting in a truck and operating hand
controls, although pushing trash bins weighing 750 pounds or greater is not possible. . . .
[¶] If modified activity driving an automated trash truck is available, he could return to
those activities immediately.” 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.



                                              4
5. Accommodations Meeting in 2010 and Followup
       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.



                                              5
       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. Silverman modify the restrictions, if Nealy believed he could do
some of the restricted activities safely. The City never received notification that Dr.
Silverman had modified Nealy’s restrictions.
       The City identified numerous job duties under the essential functions that it
believed Nealy could not perform, based on the restrictions that he could not kneel on the
right knee, bend the right knee, squat, stoop, climb, walk on uneven ground, and lift
heavy objects. These duties included clearing debris and trash from the hopper of
vehicles; cleaning the bulkhead of vehicles; repairing wheels on trash bins; looking under
vehicles during pre- and posttrip inspections; vacuuming and washing equipment;
pushing trash bins through walkways or alleys; retrieving bulk items that people may
have left outside of bins, such as furniture or appliances; walking over areas that may
include ramps, broken concrete or asphalt (uneven ground); climbing three steps to get
into vehicles; and climbing a ladder to access the bulkhead of vehicles. After looking at
Nealy’s restrictions and the essential functions of the solid waste equipment operator, the
City said his restrictions were so significant that it could not find a way to reasonably
accommodate the position.
       The committee then discussed reassigning Nealy to an alternative vacant position.
Prior to the meeting, the City identified its vacant positions. The City identified one
vacant position that was not a promotion, a city planning staff assistant, and three vacant
positions that were considered promotions (transportation engineer, transportation
planning associate, and firefighter recruit). Nealy said he was interested in the position of


                                              6
city planning staff assistant. The City gave Nealy until July 26, 2010, to submit any
applications, and if he did not submit any or the City determined it could not provide him
with an alternative position, the City would submit a disability retirement application to
CalPERS on his behalf. The City advised Nealy that it posted all open positions on the
City’s website. It encouraged him to monitor the website and inform human resources if
he was interested in any posted positions.
       Nealy submitted an application for city planning staff assistant. The City’s human
resources manager determined he did not meet the minimum qualifications for the
position in that he did not have two years of recent (within the last five years) paid work
experience performing clerical support duties.
       On or about August 3, 2010, the City sent Nealy a letter stating it was unable to
provide him with reasonable accommodation into an alternative position because he was
not minimally qualified for the only position available that was not a promotion. The
City advised him it would be extending his unpaid leave of absence while it completed
his employer-generated CalPERS disability retirement application.
       The City filed the disability retirement application in September 2010. Nealy also
submitted an application for the position of revenue collections assistant that month. He
successfully passed the application process but did not pass the written examination for
the position.
       In July 2011, CalPERS notified the City it had canceled the disability retirement
application for Nealy based on Nealy’s failure to submit necessary information.
6. The Instant Lawsuit
       Nealy filed a complaint with the California Department of Fair Employment and
Housing (DFEH) on January 19, 2011, and obtained a right-to-sue notice on that date.
He then filed the instant lawsuit against the City on February 7, 2011. The complaint
alleges Nealy became disabled following a work-related injury in July 2003, and as a
result of this injury, his physician placed him on medical disability. It also alleges Dr.
Silverman performed an exam in his worker’s compensation case and issued a report in
April 2010 containing work restrictions. Further, it alleges an accommodations meeting


                                              7
occurred in 2010 during which Nealy expressed his desire and ability to return to his old
position, but the City refused to reinstate him with or without accommodation, find him
an alternative position, or engage in a continuing interactive process, thus effectively
terminating his employment.
       The City moved for summary judgment and the court granted the motion in
November 2012. The court entered judgment for the City on all four causes of action in
the complaint (disability discrimination, failure to provide reasonable accommodation,
failure to engage in the interactive process, and retaliation) on November 14, 2012.
Nealy filed a timely notice of appeal from the judgment.
7. Nealy’s Worker’s Compensation Award
       In 2011, Nealy’s workers’ compensation claim proceeded to hearing before the
Workers’ Compensation Appeals Board. The workers’ compensation administrative law
judge (ALJ) issued his findings and award in October 2011. The ALJ found Nealy had
sustained combined permanent disability to his right knee and lower back of 40 percent
after apportionment. He also found Nealy was entitled to an unapportioned award of
permanent disability for his right knee. The ALJ awarded Nealy $36,260 in disability
indemnity.
                               STANDARD OF REVIEW
       A court shall grant a motion for summary judgment if all the papers show 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).) As the party moving for summary
judgment, the employer in a FEHA action has the burden of establishing either (1) one or
more elements of the employee’s cause of action cannot be established, or (2) a complete
affirmative defense to the cause of action exists. (Code Civ. Proc., § 437c, subds. (o)(1),
(2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the
employer may show the employee does not possess evidence needed to support a prima
facie case and also cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854.) The employer may also, but need not, present
evidence conclusively negating an element of the cause of action. (Ibid.) Once the


                                             8
employer has met its initial burden, the burden shifts to the employee to produce
evidence showing a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
       On appeal from summary judgment, we review the record de novo and must
independently determine whether triable issues of material fact exist. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24
Cal.4th 317, 334.) We resolve any evidentiary doubts or ambiguities in favor of the party
opposing summary judgment. (Saelzler v. Advanced Group 400, supra, p. 768.)
                                      DISCUSSION
       FEHA prohibits several employment practices relating to physical disabilities.
First, it prohibits employers from refusing to hire, discharging, or otherwise
discriminating against employees because of their physical disabilities. (Gov. Code,
§ 12940, subd. (a).) Second, it prohibits employers from failing to make reasonable
accommodation for the known physical disabilities of employees. (Id., subd. (m).)
Third, it prohibits them from failing to engage in a timely and good faith interactive
process with employees to determine effective reasonable accommodations. (Id., subd.
(n).) Fourth, it prohibits them from retaliating against employees for opposing practices
forbidden by FEHA. (Id., subd. (h).) Separate causes of action exist for each of these
unlawful practices. (McCaskey v. California State Automobile Assn. (2010) 189
Cal.App.4th 947, 987; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
We first address the City’s statute of limitations argument, then take each cause of action
in turn.
1. Statute of Limitations
       Preliminarily, the City argues the statute of limitations bars Nealy’s causes of
action to the extent they are based on conduct occurring before January 19, 2010. The
trial court agreed with the City that Nealy could not recover for conduct before
January 19, 2010. Nealy has not demonstrated the trial court erred.
       Nealy was required to file an administrative complaint with the DFEH and obtain
a right-to-sue notice before bringing this action. (Romano v. Rockwell Internat., Inc.
(1996) 14 Cal.4th 479, 492.) With some statutory exceptions not relevant here, the


                                             9
FEHA limitations period for filing an administrative complaint with the DFEH is one
year from the date on which the alleged unlawful practice occurred. (Gov. Code,
§ 12960, subd. (d).) Nealy filed his administrative complaint and obtained the right-to-
sue notice on January 19, 2011. Unless some exception applies, Nealy cannot recover for
alleged practices occurring before January 19, 2010.
       For the first time on appeal, Nealy contends the equitable exception known as the
“continuing violation doctrine” applies. Under this doctrine, the employer is liable for
acts falling outside the limitations period when the acts are part of a continuing violation
of the employee’s FEHA rights. The employer’s acts constitute a continuing violation
when they “(1) [are] sufficiently similar in kind—recognizing . . . that similar kinds of
unlawful employer conduct, such as acts of harassment or failures to reasonably
accommodate disability, may take a number of different forms [citation]; (2) have
occurred with reasonable frequency; (3) and have not acquired a degree of permanence.”
(Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.) “‘[P]ermanence’ in the
context of an ongoing process of accommodation of disability, or ongoing disability
harassment, should properly be understood to mean the following: that an employer’s
statements and actions make clear to a reasonable employee that any further efforts at
informal conciliation to obtain reasonable accommodation or end harassment will be
futile.” (Ibid.)
       When the City made this statute of limitations argument below, Nealy failed to
respond to it in his opposition or at the hearing, and as we noted, the trial court granted
the City’s motion based in part on this issue. On appeal, Nealy’s argument consists of
defining the continuing violation exception, asserting the City failed to properly
accommodate him from August 2006 onward, and arguing in a conclusory manner that
“there is evidence from which the trier of fact could reasonably conclude” the exception
applies. He makes no attempt to show how the City’s acts from August 2006 to 2010
were “sufficiently similar in kind,” that they “occurred with reasonable frequency,” or
that the pre-2010 acts did not “acquire[] a degree of permanence” before 2010. Thus, he
has not demonstrated the trial court erred. (Claudio v. Regents of University of California


                                             10
(2005) 134 Cal.App.4th 224, 230; Christoff v. Union Pacific Railroad Co. (2005) 134
Cal.App.4th 118, 125 [even under de novo summary judgment review, our review is
limited to issues adequately raised and supported in the appellant’s brief ].) “The fact
that we review de novo a grant of summary judgment does not mean that the trial court is
a potted plant in that process.” (Uriarte v. United States Pipe & Foundry Co. (1996) 51
Cal.App.4th 780, 791.) “[D]e novo review does not obligate us to cull the record for the
benefit of the appellant in order to attempt to uncover the requisite triable issues. As with
an appeal from any judgment, it is the appellant’s responsibility to affirmatively
demonstrate error . . . .” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107,
116.)
        There is no dispute Nealy filed his administrative complaint on January 19, 2010,
and moreover, that the relevant statute of limitations is one year. Nealy fails to
demonstrate the elements of the continuing violation exception were met here, and we
need not develop his argument for him. (Dills v. Redwoods Associates, Ltd. (1994) 28
Cal.App.4th 888, 890, fn. 1.)
 2. Reasonable Accommodation Cause of Action
        A reasonable accommodation is a modification or adjustment to the work
environment that enables the employee to perform the essential functions of the job he or
she holds or desires. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166
Cal.App.4th 952, 974 (Nadaf-Rahrov).) FEHA requires employers to make reasonable
accommodation for the known disability of an employee unless doing so would produce
undue hardship to the employer’s operation. (Gov. Code, § 12940, subd. (m).) The
elements of a reasonable accommodation cause of action are (1) the employee suffered a
disability, (2) the employee could perform the essential functions of the job with
reasonable accommodation, and (3) the employer failed to reasonably accommodate the
employee’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192;
Nadaf-Rahrov, supra, at p. 977.)
        The City focuses on the second element and argues it was undisputed Nealy could
not perform the essential functions of a solid waste equipment operator, with or without


                                             11
reasonable accommodation. Nealy argues there is a triable issue of material fact as to the
essential functions of the position. He asserts one of the City’s identified essential
functions was, in fact, nonessential. He also asserts there are triable issues on whether
reasonable accommodations would have allowed him to perform the essential functions
of the job and whether reassignment was available. We hold the City’s undisputed
evidence entitled it to summary judgment on this cause of action.
       a. Nealy’s Disagreement with the Essential Functions
       “‘Essential functions’ means the fundamental job duties of the employment
position the individual with a disability holds or desires. ‘Essential functions’ does not
include the marginal functions of the position.” (Gov. Code, § 12926, subd. (f).)
“‘Marginal functions’ of an employment position are those that, if not performed, would
not eliminate the need for the job or that could be readily performed by another employee
or that could be performed in an alternative way.” (Cal. Code Regs., tit. 2, § 11065,
subd. (e)(3).) “A job function may be considered essential for any of several reasons,
including, but not limited to, any one or more of the following: [¶] (A) . . . [T]he reason
the position exists is to perform that function. [¶] (B) . . . [T]he limited number of
employees available among whom the performance of that job function can be
distributed. [¶] [And] (C) . . . [T]he incumbent in the position is hired for his or her
expertise or ability to perform the particular [highly specialized] function.” (Gov. Code,
§ 12926, subd. (f)(1); Cal. Code. Regs., tit. 2, § 11065, subd. (e)(1).)
       The City maintains that the “driving/equipment operation” essential function of
the position required the ability to operate at least four different types of refuse collection
vehicles—the automated side loader, a two-person front loader, a two-person rear loader,
and a one-person bin truck that accompanied the rear loader. Nealy asserts the ability to
operate all four vehicles is not essential; he need only be able to operate one type of
vehicle, the automated side loader. This is important, he contends, because the
automated side loader limited the physical demands placed on him.
       The City’s evidence indicated all solid waste equipment operators were required to
operate all four vehicles because the operators needed to fill in for one another when


                                              12
someone was absent from work. If an operator of a two-person vehicle was absent, the
City would often need to assign an operator of an automated side loader to fill in.
Moreover, all operators were required to operate all vehicles because, in the event of a
natural disaster, the City would need operators to collect debris. To do this, they would
likely need to drive the bigger two-person vehicles that had the capacity to hold large
debris, not the automated side loaders.
       Even if we assume for the sake of argument that Nealy is correct, this dispute
presents no triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c).) The
dispute relates solely to the “driving/equipment operation” essential function of the job.
Nealy focuses on this essential function to the exclusion of all others, but there were
numerous other essential functions. The other duties the City identified as problematic
for Nealy given his restrictions fall under other essential functions such as “refuse and
recyclable collection/disposal duties,” “equipment maintenance/inspection,” and “heavy
lifting.” The fact that one essential function may be up for debate does not preclude
summary judgment if the employee cannot perform other essential functions even with
accommodation. We turn now to some of those other essential functions and whether
reasonable accommodations were possible.
       b. Potential Reasonable Accommodations
       Reasonable accommodations may include, among other things, job restructuring
or permitting an alteration of when and/or how an essential function is performed. (Gov.
Code, § 12926, subd. (p)(2); Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(G).) Job
restructuring as a reasonable accommodation may include “reallocation or redistribution
of non-essential job functions in a job with multiple responsibilities.” (Cal. Code Regs.,
tit. 2, § 11065, subd. (p)(2)(E).) The reasonableness of an accommodation generally is a
question of fact. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11.)
       Nealy insists the City could have restructured his old position so that he did not
have to perform heavy lifting or kneeling, which might have been possible by assigning
him to the automated side loader permanently. But the City argues that eliminating
heavy lifting and kneeling would be to eliminate essential functions of the job. It asserts


                                             13
that eliminating an essential function is not a reasonable accommodation but is
unreasonable as a matter of law.
       We agree with the City that elimination of an essential function is not a reasonable
accommodation. Indeed, permitting elimination would be at odds with the definition of
the employee’s prima facie case. The employee’s case consists, in part, of showing he or
she can perform the essential functions of the job with accommodation, not that an
essential function can be eliminated altogether to suit his or her restrictions. (See Dark v.
Curry County (9th Cir. 2006) 451 F.3d 1078, 1089 [Americans with Disabilities Act
(ADA) “does not require an employer to exempt an employee from performing essential
functions or to reallocate essential functions to other employees”].)1 The examples of
reasonable accommodations in the relevant statutes and regulations include reallocating
nonessential functions or modifying how or when an employee performs an essential
function, but not eliminating essential functions altogether. FEHA does not obligate the
employer to accommodate the employee by excusing him or her from the performance of
essential functions. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th
962, 985.)
       There is no dispute heavy lifting was an essential function of the solid waste
equipment operator—even for those who operated the automated side loader. Nealy’s
deposition testimony and that of his supervisor suggest that while the automated side


1       FEHA’s accommodation requirements are modeled on the ADA. (Raine v. City of
Burbank (2006) 135 Cal.App.4th 1215, 1224 (Raine).) “Like FEHA, the ADA requires
an employer, in the absence of undue hardship, to make ‘reasonable accommodation’ for
an employee or applicant with a known disability. (See 42 U.S.C. §§ 12111(8), (9) &
12112(a), (b)(5)(A).)” (Raine, supra, at p. 1224, fn. 6.) “[W]hen, as here, provisions of
the two acts are similarly worded, federal decisions interpreting the ADA are instructive
in applying FEHA.” (Id. at p. 1226, fn. 7; see Spitzer v. Good Guys, Inc. (2000) 80
Cal.App.4th 1376, 1384 (Spitzer) [“Resort to federal case law is particularly appropriate
in connection with the duty to make reasonable accommodation because the provisions of
the state regulations defining ‘reasonable accommodation’ under the FEHA are virtually
identical to language of the ADA . . . .”].)



                                             14
loader limited the manual duties of the operator, the vehicle did not eliminate the need for
heavy lifting. As the name implies, the vehicle automatically lifted trash bins, emptied
them into the hopper, and placed the bins back on the street. The operator did this from
inside the cab with a toggle stick or buttons. But if the equipment did not grip the bin
properly, the bin could fall into the hopper or onto the street. When this happened, the
operator had the discretion to return to the City yard and obtain assistance to retreive the
bin from the hopper or to call for assistance to right the bin on the street.
       The EFJA identified “heavy lifting” as an essential function and described the
heavy lifting duties as “lifting fallen bins and containers; lifting and carrying bulk items
left out of bins and containers; and removing bins which have fallen into the hopper; and
perform[ing] related duties as needed and assigned.” Empty containers could weigh
between 51 and 75 pounds, and full containers and bulk items such as furniture and
appliances could weigh over 100 pounds.
       Consistent with Nealy’s evidence, the EFJA indicated solo operators would be
required to lift, at most, 50 pounds unassisted, and they could “dispatch assistance” for
lifting items over 50 pounds. Still, “assistance” with lifting heavier items did not mean
the need for heavy lifting by the solo operator evaporated. Because no one was required
to lift more than 50 pounds unassisted, the logical inference is that the solo operator
merely became one member of a two-person (or more) team, both of whom working
together lifted items over 50 pounds. Moreover, it is unclear how well Nealy would be
able to assist with these heavy lifting tasks given his other restrictions. It seems likely
these tasks would require either stooping,2 squatting, bending the right knee, or kneeling,
if not all of the above.
       Besides heavy lifting, it is also undisputed that “equipment
maintenance/inspection” was an essential function of the solid waste equipment operator.

2      The verb “stoop” is defined as: “To bend the body forward and downward
sometimes simultaneously bending the knees.” (Webster’s 3d New Internat. Dict. (2002)
p. 2250, col. 2.)



                                              15
There is no evidence Nealy would be exempt from this essential function if he drove only
the automated side loader, as he wished. This function obligated operators to perform
daily pre- and posttrip inspections of their vehicles and clear debris from the bulkhead of
vehicles. Inspections required the operator to inspect areas underneath the vehicle.
Nealy himself testified operators of the automated side loader conducted inspections of
the vehicle, and the inspections would require bending over, at the very least, if not
getting down on one’s knees or back. Thus, his restrictions against stooping and bending
the right knee would inhibit him from conducting inspections. Likewise, clearing debris
from the bulkhead involved one of his restrictions. One had to climb a ladder to access
the bulkhead. For that matter, merely getting into the vehicles—indisputably part of the
“driving/equipment operation” essential function—required climbing a few steps.
       In sum, there is no dispute heavy lifting was an essential function of a solid waste
equipment operator. Nealy was absolutely precluded from heavy lifting by
Dr. Silverman’s restrictions. He does not propose any accommodation to the job other
than eliminating the essential function of heavy lifting, which is not a reasonable
accommodation. Further, equipment maintenance and inspection and driving a vehicle
were indisputably essential functions. These things as well involved Nealy’s restrictions.
       The City was not required to eliminate essential functions from the job to
accommodate him. We need not reach the details of the other essential functions the City
contends Nealy could not perform. The inability to perform even one essential function
is enough to move on to other alternatives, such as reassignment.
       Reasonable accommodation may also include “reassignment to a vacant position”
if the employee cannot perform the essential functions of his or her position even with
accommodation. (Gov. Code, § 12926, subd. (p)(2); Cal. Code Regs., tit. 2, §§ 11065,
subds. (p)(2)(N), 11068, subd. (d)(1)(A); Raine, supra, 135 Cal.App.4th at p. 1223.)
FEHA requires the employer to offer the employee “comparable” or “lower graded”
vacant positions for which he or she is qualified. (Cal. Code Regs., tit. 2, § 11068, subd.
(d)(1), (2).) FEHA does not require a reassignment, however, if there is no vacant
position for which the employee is qualified. (Cuiellette v. City of Los Angeles (2011)


                                             16
194 Cal.App.4th 757, 767.) Additionally, FEHA does not require the employer to
promote the employee or create a new position for the employee to a greater extent than it
would create a new position for any employee, regardless of disability. (Cal. Code Regs.,
tit. 2, § 11068, subd. (d)(4); Spitzer, supra, 80 Cal.App.4th at p. 1389.)
       Nealy contends the City could have offered him the city planning staff position or
another clerical position as a reasonable accommodation. He did not meet the
qualifications for the city planning staff position, however, and the evidence is
undisputed there were no other vacant positions for which he was qualified. In cases
when courts have found a triable issue on reassignment, the employees have adduced
evidence obtained through discovery that vacant positions for which they were qualified
existed during the relevant period, but the employer failed to offer the positions to them.
(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968; Spitzer, supra, 80 Cal.App.4th at
p. 1390.) Nealy has not adduced any such evidence here to dispute the City’s evidence
that no other vacant positions for which he was qualified existed during the relevant
period in 2010. Under FEHA, the City was thus relieved of its duty to reassign Nealy.
(Spitzer, supra, 80 Cal.App.4th at p. 1389.)
       To the extent Nealy claims the City had a duty to await a vacant position to arise,
he is incorrect. A finite leave of absence may be a reasonable accommodation to allow
an employee time to recover, but FEHA does not require the employer to provide an
indefinite leave of absence to await possible future vacancies. (Nadaf-Rahrov, supra,
166 Cal.App.4th at p. 968; Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at
p. 226.)
       In short, an employer can prevail on summary judgment on a claim of failure to
reasonably accommodate by establishing through undisputed facts that “there simply was
no vacant position within the employer’s organization for which the disabled employee
was qualified and which the disabled employee was capable of performing with or
without accommodation . . . .” (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245,
263.) The City has done that here. Its evidence established Nealy could not perform the
essential functions of the solid waste equipment operator with reasonable


                                               17
accommodation, and moreover, there were no vacant positions for which he was
qualified. The burden then shifted to Nealy to produce evidence showing a triable issue
of material fact. This he has not done. The trial court did not err in granting summary
judgment on this cause of action.
3. Disability Discrimination Cause of Action
       A prima facie case of disability discrimination under FEHA requires the employee
to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or
her job, and (3) was subjected to adverse employment action because of the disability.
(Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) Once the
employee establishes his or her prima facie case, “the burden then shifts to the employer
to offer a legitimate, nondiscriminatory reason for the adverse employment action.”
(Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.) The employee may
still defeat the employer’s showing with evidence that the stated reason is pretextual, the
employer acted with discriminatory animus, or other evidence permitting a reasonable
trier of fact to conclude the employer intentionally discriminated. (Ibid.)
       The City focuses again on the second element of the prima facie case, arguing
Nealy cannot show he is a “qualified individual” within the meaning of FEHA. (Green v.
State of California (2007) 42 Cal.4th 254, 260.) The showing required is identical to that
required for a cause of action for failure to reasonably accommodate. That is, a qualified
individual is someone who is able to perform the essential functions of his or her job,
with or without reasonable accommodation. (Id. at p. 262.) FEHA permitted the City to
discharge Nealy if he was unable to perform the essential functions of his job even with
reasonable accommodations. (Gov. Code, § 12940, subd. (a)(1) [“This part does not
prohibit an employer from . . . discharging an employee with a physical or mental
disability . . . where the employee, because of his or her physical or mental disability, is
unable to perform his or her essential duties even with reasonable
accommodations . . . .”]; Green v. State of California, supra, at p. 262.)
       We have already discussed the City’s evidence that Nealy could not perform the
essential functions of his job, with or without reasonable accommodation, and we need


                                             18
not reiterate that discussion here. Suffice it to say the City has shown Nealy cannot
establish one or more elements of his disability discrimination cause of action. The trial
court did not err in granting summary judgment on this cause of action.
4. Interactive Process Cause of Action
       “Under FEHA, an employer must engage in a good faith interactive process with
the disabled employee to explore the alternatives to accommodate the disability.”
(Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424,
citing Gov. Code, § 12940, subd. (n).) FEHA requires an informal process with the
employee to attempt to identify reasonable accommodations, not necessarily ritualized
discussions. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.)
       To prevail on a claim for failure to engage in the interactive process, the employee
must identify a reasonable accommodation that would have been available at the time the
interactive process occurred. (Scotch v. Art Institute of California (2009) 173
Cal.App.4th 986, 1018 (Scotch); Nadaf-Rahrov, supra, at p. 984.) “An employee cannot
necessarily be expected to identify and request all possible accommodations during the
interactive process itself because ‘“‘[e]mployees do not have at their disposal the
extensive information concerning possible alternative positions or possible
accommodations which employers have . . . .’”’” (Scotch, supra, at p. 1018.) But the
employee should be able to identify specific, available reasonable accommodations
through the litigation process, and particularly by the time the parties have conducted
discovery and reached the summary judgment stage. (Id. at p. 1019.)
       In this case, it is undisputed the City convened a meeting of its accommodations
committee after receiving Dr. Silverman’s report on Nealy’s restrictions in April 2010.
The committee went through each of Nealy’s restrictions and discussed them in relation
to the essential functions of the solid waste equipment operator. The City also came
prepared with a list of its vacant positions and informed Nealy of them.
       The only accommodations Nealy argues should have been available are
(1) restructuring his old job so that he did not lift heavy objects or kneel; (2) assigning
him to the automated side loader permanently; (3) reassigning him to another position;


                                              19
and (4) retraining. As we concluded above, the first two were not reasonable
accommodations allowing him to perform the essential functions of the job, and the third
was not reasonable because there were no vacant positions for which he was qualified.
The fourth—retraining—does not assist Nealy. He provides absolutely no detail as to
what type of retraining would have enabled him to perform the solid waste equipment
operator job or some other vacant position. The bare assertion that the City should have
provided retraining does not create a triable issue of fact.
       The City has carried its burden by showing Nealy possesses no evidence of
reasonable accommodations available at the time of the interactive process. The trial
court did not err in granting summary judgment on this cause of action either.
5. Retaliation Cause of Action
       To establish a prima facie case of retaliation under FEHA, “a plaintiff must show
‘(1) he or she engaged in a “protected activity,” (2) the employer subjected the employee
to an adverse employment action, and (3) a causal link existed between the protected
activity and the employer’s action.’” (Scotch, supra, 173 Cal.App.4th at p. 1020.) The
City contends Nealy cannot show he engaged in protected activity. We agree.
       FEHA makes it unlawful for the employer to discharge or discriminate against an
employee because he or she has “opposed any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in any proceeding under
this part.” (Gov. Code, § 12940, subd. (h).) Thus, protected activity takes the form of
opposing any practices forbidden by FEHA or participating in any proceeding conducted
by the DFEH or the State Fair Employment and Housing Council (FEHC). (Cal. Code
Regs., tit. 2, §§ 11002, subds. (a), (b), 11021, subd. (a).)
       Opposing practices forbidden by FEHA includes seeking the advice of the DFEH
or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC;
opposing employment practices the employee reasonably believes to exist and believes to
be a violation of FEHA; participating in an activity perceived by the employer as
opposition to discrimination; or contacting, communicating with, or participating in the
proceeding of a local human rights or civil rights agency regarding employment


                                              20
discrimination. (Cal. Code Regs., tit. 2, § 11021, subd. (a)(1).) Participating in any
proceeding conducted by the DFEH or FEHC includes contacting, communicating with,
or participating in the proceedings of the DFEH or FEHC because of a good faith belief
that the employer has violated FEHA; or involvement as a potential witness, which the
employer perceives as participation in an activity of DFEH or FEHC. (Id., subd. (a)(2).)
       But protected activity does not include a mere request for reasonable
accommodation. (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220
Cal.App.4th 635, 652 (Rope).) Without more, exercising one’s rights under FEHA to
request reasonable accommodation or engage in the interactive process does not
demonstrate some degree of opposition to or protest of unlawful conduct by the
employer. (Id. at pp. 652-653.)
       Here, Nealy does not identify any activity that qualifies as protected activity. He
contends his protected activity was seeking the City’s assistance to return to work—that
is, seeking reasonable accommodation—and initiating the interactive process. These acts
alone do not amount to “oppos[ing] any practices forbidden under” FEHA or
participating in DFEH or FEHC proceedings. (Gov. Code, § 12940, subd. (h); Rope,
supra, 220 Cal.App.4th at p. 652.) If they did, this interpretation of protected activity
“‘would significantly blur and perhaps obliterate the distinction between an action for
failure to accommodate or engage in the interactive process and retaliation.’” (Rope,
supra, at p. 653.)
       Nealy’s exercise of his right to request reasonable accommodation was not
protected activity for purposes of a FEHA retaliation claim. The trial court properly
granted summary judgment on this cause of action.




                                      DISPOSITION
       The judgment is affirmed. The City shall recover costs on appeal.



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                                   FLIER, J.




WE CONCUR:   BIGELOW, P. J.




             RUBIN, J.




                              22
Filed/2/13/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


TONY NEALY,                                       B246634

        Plaintiff and Appellant,                  (Los Angeles County
                                                  Super. Ct. No. BC454516)
        v.
                                                  ORDER CERTIFYING OPINION
CITY OF SANTA MONICA,                             FOR PUBLICATION

        Defendant and Respondent.                 NO CHANGE IN JUDGMENT




THE COURT:*


        The opinion in the above-entitled matter filed on January 21, 2015, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published in the Official Reports and it is so ordered.




*       BIGELOW, P. J.                    RUBIN, J.                          FLIER, J.



                                            23
