IN THE COURT OF APPEAL OF THE STATE OF
SECOND APPELLATE DISTRICT
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* * No. F01125 &nbs= p; &= nbsp; &nbs= p; &= nbsp; &nbs= p; |
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Plaintiff and Appellant= |
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* (S= uperior Court No. 232395-4) |
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v. |
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CAGED BIRD BURRITOS, |
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Defendant and Responden= t |
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______________________________________
Appeal from a Judgment of
The
Superior Court of California,
The Honorable GINA GENOVA, Judge
_________________________________
APPELLANT’S OPENING BRIEF
_________________________________
TABLE OF CONTENTS
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TABLE OF AUTHORITIES …………………………= 230;…………………………&= #8230;... |
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QUESTIONS PRESENTED …………………………= 230;…………………………&= #8230;… |
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STATEMENT OF THE CASE…………= 230;…………………………&= #8230;………………. |
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STATEMENT OF APPEALABILITY …………………………= 230;…………………… |
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STATEMENT OF THE FACTS …………………………= 230;………………………..... |
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ARGUMENT……= …………………………̷= 0;…………………………= 230;…………… |
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The trial court erred in granting summary judgmen= t to Caged Bird Burritos According to |
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Caged Bi= rd Burritos failed to provide reasonable accommodation and failed to engage = in an interactive process to determine such accomodation for Mr. Freshman’s disability as required under the FEHA…R= 30;.………………………….=
A. B.
A. B. C.
A. <=
![endif]>Mr.
Cagebird was made aware of Mr. Freshman’s alcoholism by other employees. B.=
Mr. Freshman attempted to receive a reasonable
accommodation from Mr. Cagebird.
A. <=
![endif]>Although
the FEHA requires that Mr. Freshman carry the primary burden of requesting
accommodation, Caged Bird Burritos also bears some responsibility. VI. Mr. Cagebird is liable under th= e FEHA because he caused the interactive process to breakdown and thus failed to provide reasonable accommodation. ……………= …………………………̷= 0;…………………….. |
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CONCLUSION
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TABLE OF AUTHORITIES
Cases
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Haltom v. So=
uthland
Title of Orange County, et al, 2005 |
9,10 |
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Bultemeyer v= . Fort Wayne Community Schools 1996 |
13,15 |
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Versa Techno=
logies,
Inc. v. Superior Court (1978) 78 |
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Cucuzza v. City of (2002) 104 Gosvener v. = Coastal Corporation, et al. 1996 |
7 10 |
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Barnett v.=
U.S.
Air, Inc. 2000 |
9 |
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Statutes
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8, 13, 14, = 15 |
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Cal Gov Code § 12926.1 |
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Titles I and V of the Americans with Disabilities
Act of 1990 |
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Other Sour=
ces
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The National Council on Alcoholism and Drug
Dependence: |
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State of |
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QUESTIONS PRESENTED
STATEMENT OF THE CASE
Frederick = Freshman filed a complaint alleging the following causes of action against Caged Bird Burritos: (1) Wrongful termination in violation of public policy under the FEHA, alleging he was terminated because of his alcoholism; (2) Employment discrimination under the FEHA alleging that he was terminated due to his physical disability of alcoholism, and (3) Failure to accommodate under the FEHA, alleging Caged Bird Burritos failed to make reasonable accommodation = for his physical disability of alcoholism and failed to engage in an “int= eractive process” to determine such reasonable accommodation. The complaint stemmed from Mr. Freshman’s termination subsequent to failing a “random” alcohol test, which is in violation of Caged Bird Burrito’s zero-tolerance alcohol and drug abuse policy. The defendant responded by filing a motion for summary judgment to prevent the case from going to trial. The trial court granted the motion for summary judgment and dismissed the case. The court erred in this judgment by failing to recognize that the facts of the case meet all the elements required for a cause of ac= tion for failure to provide reasonable accommodation and failure to engage in an interactive process. We now appeal the trial court’s decision to grant summary judgment on the grounds that it contains prejudicial error.
STATEMENT OF APPEALABILITY
This is an appeal following a motion by the trial court to grant summary judgmen= t on behalf of the defendant is authorized by the Code of Civil Procedure, secti= on 904.1, subdivision (a)(1).
STATEMENT OF THE FACTS
Prior Proceedings
Frederick Freshman filed a
complaint for wrongful termination in violation of public policy under the
FEHA, employment discrimination under the FEHA, and failure to accommodate
under the FEHA, alleging that Caged Bird Burritos failed to make reasonable
accommodations for his physical disability of alcoholism nad failed to enga=
ge
in an “interactive process” to determine such reasonable
accommodation. The Superior Court of the State of
Material Facts
The plaint=
iff, Mr.
Frederick Freshman, was a full time employee of Caged Bird Burritos for four
months before becoming disabled by his alcoholism. Mr. Freshman, also a full
time student studying Bio-Chemistry at the
Over the n=
ext four
weeks, alcoholism ravaged Mr. Freshman’s life. He experienced perform=
ance
issues at work, which did not go unnoticed by his employer, Mr. Cagebird. S=
everal
reports were made to Mr. Cagebird regarding Mr. Freshman’s alcoholism=
. However,
despite young
After two = weeks of struggling to juggle the demands of work, school, and treatment for his disability, Mr. Freshman was selected for a drug test by an allegedly “random” process. Mr. Freshman took the test willingly and also took the opportunity to communicate his disability to Mr. Cagebird, stating that he’d been drinking to numb the pain from his bicycling accident = and that alcohol would likely show up in his specimen. When alcohol did show up= in Mr. Frederick’s specimen, Mr. Cagebird immediately fired him.
ARGUMENT
&nbs=
p;
Standard of Review
There
is substantial evidence that Caged Bird Burritos failed to provide reasonab=
le
accommodation for Mr. Freshman’s alcohol disability and failed to eng=
age
in an interactive process to determine such reasonable accommodation. Upon
review, the appellate court examines the record of facts to determine wheth=
er
the trial court committed prejudicial error. California Code of Civil Proce=
dure
§ 437c[1]
restricts the granting of summary judgment to cases where there is no genui=
ne
issue as to any material fact. When reviewing a motion for summary judgment,
the court must view the facts in the light most favorable to the plaintiff.
“If there is a single issue of material fact, a motion [for summary
judgment] must be denied.”[2]
This explicitly means that the court must be satisfied that it is impossible
for the claim to be supported at trial because of some inherent factual
deficiency. In other words, the court determines whether the opposing
party’s complaint alleges a prima facie case, which means it consists=
of
sufficient evidence to allow plaintiff to take his or her case to a jury. <=
/p>
As
this is an appeal from summary judgment, the Court must follow the DeNovo
Review, which states that the Court is not bound by the trial court’s
stated reasons or rationales. [3] all
factual evidence from the plaintiff’s perspective, as well as the
reasonable inferences that can be drawn from it, must be accepted as true.[4] In
addition, the Court must follow the same three-step analytical process that=
is
required at the trial court level. This process involves first identifying =
the
causes of action, determining whether the moving party has established facts
justifying judgment in its favor, and lastly, determining if the moving par=
ty
has carried its initial burden. If the Court finds that the moving party has
carried its initial burden, the Court must decide whether the opposing party
has demonstrated the existence of a triable, material issue of fact.[5] Upon
following this procedure, you will find that Mr. Freshman’s complaint
presents multiple material, triable issues of fact that must be lawfully
addressed by a trial court. Caged Bird
Burritos failed to provide reasonable accommodation and failed to engage in=
an
interactive process to determine such accomodation for Mr. Freshman’s
disability as required under the FEHA Caged Bird
Burritos failed to provide reasonable accommodation for Mr. Freshman’s
disability. Government Code &s=
ect;
12940 under The Fair Employment and Housing Act states that it is unlawful
“For
an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or
mental disability of an applicant or employee.”[6]
Furthermore, section 12940 section (n) states that it is unlawful “Fo=
r an
employer… to fail to engage in a timely, good faith, interactive proc=
ess
with the employee… to determine effective reasonable accommodations, =
if
any, in response to a request for reasonable accommodation by an employee&#=
8230;
with a known physical or mental disability or known medical condition.̶=
1;[7] I.&n=
bsp;
Mr. Fr=
eshman
was employed by Caged Bird Burritos A. Caged Bird Burritos was required=
to
provide reasonable accommodation for the known disability
of an employee. Mr. Freshman was a full time employee of Caged Bird Burritos from
November 15, 2005 to April 15, 2006. As an employee of Caged Bird Burritos,=
Mr.
Freshman was protected under the FEHA and entitled to reasonable accommodat=
ion
for a known physical or mental disability. =
A. Mr.
Freshman has a history of alcohol-related problems, including a citation for
Bicycling under the Influence. Mr. Freshm=
an has a
history of alcohol related problems. He was cited for ‘Bicycling Unde=
r the
Influence’ on March 16th, 2006, [8]
four months into his employment at Caged Bird Burritos. It was the accident
that he incurred on the night he was cited that turned Mr. Freshman’s
alcoholic tendencies into a full blown problem. Mr. Freshman began to use
alcohol to numb the severe back and neck pain that he experienced as a
consequence his bicycling accident. As a result of his alcohol addiction, M=
r. Freshman
experienced black outs, was ridiculed by his coworkers, and was placed on
academic probation due to a dramatic drop in his grade point average at the=
University
of California, Santa Barbara. Prior to Mr. Freshman’s alcoholism, he =
had
a 3.8 grade point average and was a member of the Honor’s Program.
What began=
as a
last resort attempt at controlling his pain rapidly became a disability tha=
t required
an intensive treatment program. Mr. Freshman bravely attempted to treat his
disability without any encouragement or support from Caged Bird Burritos by
joining his local chapter of Alcoholics Anonymous, however, he was terminat=
ed
from his position within 2 weeks of his treatment after alcohol showed up i=
n a
drug test. =
B. Even
if Mr. Freshman did not suffer from alcoholism, he is still protected under=
the
FEHA. As evidenc=
ed by
his behavior, the observations of his coworkers, and by his self admission,=
Mr.
Freshman appears to suffer from the physical disability of alcoholism. Howe=
ver,
it is important to note that even if Mr. Freshman did not suffer from
alcoholism, there is evidence suggesting that he was perceived by his emplo=
yer
as suffering from alcoholism. In Haltom
v. Southland Title of Orange County, the defendant asserts that it had =
no
duty to accommodate the plaintiff’s alcoholism because the plaintiff,=
Mr.
Haltom, denied that his alcoholism affected his work and he did not
specifically ask for accommodation. However, the court held that the employ=
ee
is not always required to specifically ask for accommodation because the
employer should, upon observing signs of a disability, initiate an
“interactive process” to determine what reasonable accommodation
can be made.[9]
Furthermore, in Barnett v. U.S. Air=
, Inc.,[10]
the court cited the Equal Employment Opportunity Commission's Compliance Ma=
nual
pertaining to similar provisions in the ADA, noting, "'An employer sho=
uld
initiate the reasonable accommodation interactive process without being ask=
ed
if the employer: (1) knows that the employee has a disability, (2) knows, or
has reason to know, that the employee is experiencing workplace problems be=
cause
of the disability, and (3) knows, or [*21] has reason to know, t=
hat
the disability prevents the employee from requesting a reasonable
accommodation.'" (Id. at p. 1112.) Following this reasoning, it=
is
irrelevant whether or not Mr. Freshman was actually an alcoholic; what matt=
ers
is whether Mr. Cagebird perceived him as an alcoholic and failed to engage =
in
an interactive process to determine reasonable accommodation. =
A. Previous
case law clearly states that alcoholism can be a physical disability as def=
ined
under the FEHA. Alcoholi=
sm is
defined within the realm of physical disabilities by previous case law. In =
Haltom v. Southland Title of Orange Co=
unty,
which also involves an appeal from summary judgment on the issue of failure=
to
provide reasonable accommodation under the FEHA, the court states that R=
20;[i]t
is undisputed that alcoholism can be a protected disability under the FEHA.=
”[11]
Based partially on this reasoning, the court reverses the judgment and the
matter is remanded for a trial based on the merits. Prior to the Haltom case, Gosvener v. Coastal Corporation[12]=
, et
al., reached the above conclusion by stating that “…because
alcoholism could be a covered disability under the FEHA, which incor=
porates
the definition of disability listed in the Americans with Disabilities Act =
of
1990 (42 U.S.C. § 12111) ( =
B. The
In Governm=
ent Code
12026.1, the legislature states that “[i]t is the intent of the
Legislature that the definitions of physical disability and mental disabili=
ty
be construed so that applicants and employees are protected from discrimina=
tion
due to an actual or perceived physical or mental impairment that is disabli=
ng,
potentially disabling, or perceived as disabling or potentially
disabling.”[14]
It continues to define a ‘disability’ as something that limits a
major life activity. Therefore, people with alcoholism who are limited in a
major life activity will have a disability under the FEHA. It is worth noting that the FEHA=
217;s
definition of a disability is even broader than the American’s with
Disabilities Act definition, which stipulates that an individual must be
“substantially limited” in a major life activity to qualify as
having a recognized disability.[15]
The difference between the FEHA and the =
C. Medical
Science and National Organizations define alcoholism as a physical disabili=
ty. In additio=
n, the National
Council on Alcoholism and Drug Abuse confirms that alcoholism is a phys=
ical
addiction. The council defines alcoholism as “a primary, chronic
disease with genetic, psychoso=
cial,
and environmental factors influencing
its development and manifestations. The disease is often progressive and fa=
tal.
It is characterized by continuous or periodic impaired control over drinkin=
g,
preoccupation with the drug alcohol, use of alcohol despite adverse
consequences, and distortions in thinking, most notably denial.”[16]
The word ‘primary’ refers to the fact that alcoholism stands al=
one
as a disease, apart from any secondary symptoms or disabilities that may oc=
cur
as a result of alcoholism. By using the term disease, the council asserts t=
hat
alcoholism is an “involuntary disability.”=
[17] IV. Mr. Cageb=
ird was
aware that Mr. Freshman suffered from alcoholism. As the own=
er and
manager of Caged Bird Burritos, Mr. Cagebird was aware of Mr. Freshman̵=
7;s
alcohol problem. Caged Bird Burritos is a relatively small business, with 35
employees and only 15 that are full-time workers.[18]
Mr. Cagebird worked six days per week as the manager and handled all employ=
ee
relations and scheduling matters during the six month period that Mr. Fresh=
man
was employed by Caged Bird Burritos. Over
a four week period, Mr. Cagebird was approached by eight employees who info=
rmed
him of Mr. Freshman’s alcohol problem. The employees reported that
Mr. Freshman smelled of alcohol and also appeared disheveled. One employee =
went
so far as to state that Mr. Freshman was often referred to by coworkers as
“J.D.” because he smelled of “Jack Daniel’s”
whiskey. Clearly this kind of observation should have resulted in some form=
of
communication on the part of Mr. Freshman’s employer. If
the numerous reports by employees weren’t enough to convince Mr. Cage=
bird
of Mr. Freshman’s alcoholism, surely the requests for a schedule chan=
ge
to attend ‘Alcoholics Anonymous’ meetings would have persuaded =
him.
After six weeks of dealing with his alcoholism on his own, Freddy began to
attend nightly AA meetings. He directly asked for accommodation from Mr.
Cagebird, implying that Mr. Cagebird was aware of Mr. Freshman’s
disability. V. Caged Bird
Burritos failed to provide reasonable accommodation for Mr. Freshman’s
disability. Despite the
persistent reports from employers over a four week period, Mr. Cagebird fai=
led
to initiate an interactive process to determine reasonable accommodation for
Mr. Freshman’s disability. In fact, even after Mr. Freshman approached
his employer and requested a schedule change, Mr. Cagebird did not accommod=
ate
him. Instead, Mr. Cagebird merely ‘permitted’ Mr. Freshman to
attend his Alcoholics Anonymous meetings when another employee was willing =
to
cover Freshman’s shift. This forced Freddy to choose between earning =
much
needed money to afford his education and treating his ravaging disability. =
The
FEHA defines a “reasonable accommodation” as one that does not
impose an undue hardship on the employer's business.”[19]
It goes on to provide a list of examples that constitute ‘reasonable =
accommodation.’
The list includes “changing the work shift,” (id.) which was
exactly what Mr. Freshman had requested. Considering that Caged Bird Burrit=
os
is open for 15 hours per day[20],
it would have been reasonable for Mr. Cagebird to offer Freddy another shif=
t so
that he could work and attend h=
is AA
meetings. It
is important to note that the FEHA explicitly states that an employee must =
be qualified
to perform the basic functions of his or her job, with or without
accommodation, in order to have a complaint against an employer for failure=
to
provide reasonable accommodation.[21]
Mr. Freshman meets the minimum requirements of this burden. Although his wo=
rk
performance had declined since his disability took hold, Mr. Freshman was s=
till
capable of carrying out the basic tasks assigned to him per his employee
contract.[22] Whi=
le
it is true that he had a few “close calls,” Mr. Freshman never =
had
a work-related accident and prior to his disability, he was regarded as a
“burrito-slinging extraordinaire” by his coworkers. Furthermore=
, he
was never given the change to prove his competency because Mr. Cagebird fai=
led
to engage in an interactive process to determine reasonable accommodations.
While it is true that the burden of requesting accommodation rests on the
employee’s shoulders, previous case law reveals that the employer bea=
rs
some responsibility as well. For example, in Bultemeyer v. Fort Wayne Community Schools, the court states th=
at,
“[w]hile requesting a reasonable accommodation is the employee's
responsibility, [the employer] cannot place the whole burden of the interac=
tive
process on the shoulders of Bultemeyer, who is admittedly suffering from me=
ntal
problems. It had some responsibility, especially considering that it was we=
ll
aware of Bultemeyer's condition, to take the small step of inquiring of [the
employee]…”[23] &=
nbsp; Applied
to Mr. Freshman’s case, this means that Mr. Cagebird, being well awar=
e of
Mr. Freshman’s alcohol problem, should have taken the first step in
opening a line of communication with Mr. Freshman. The fact that denial is a
symptom of alcoholism obliges special consideration from the employer, and =
as in
the Bultemeyer case, the employ=
er is
responsible for inquiring as to whether or not the employee is experiencing=
a
problem.[24] &=
nbsp; VI. Mr. Cagebird is liable under the FEHA because he caused the
interactive process to breakdown and thus failed to provide reasonable
accommodation. In determining what constitutes “reasonable accommodation,̶=
1;
the United States Court of Appeals found that: “No hard and fast rule will suffice, because neither party shou=
ld
be able [**14] to cause a breakdown in the process for the purpo=
se
of either avoiding or inflicting liability. Rather, courts should look =
for
signs of failure to participate in good faith or failure by one of the part=
ies
to help the other party determine what specific accommodations are necessar=
y. (italics
and bold added). A party that obstructs or delays the interactive process is
not acting in good faith. A party that fails to communicate, by way of
initiation or response, may also be acting in bad faith. In essence, courts
should attempt to isolate the cause of the breakdown and then assign
responsibility.”[25] Under the FEHA, an employer must engage in a timely, good faith, and
interactive process with the employee to determine what, if any, reasonable
accommodations can be made.[26] As
was previously stated, Mr. Cagebird did not address Mr. Freshman’s
alcoholism over the several weeks that it was made obvious to him by employ=
ee
reports. Furthermore, Mr. Cagebird did not seek to engage in an interactive
process when Mr. Freshman asked him for a schedule change to accommodate hi=
s AA
meetings. Finally, Mr. Cagebird did not engage in an interactive process up=
on
hearing Mr. Freshman’s admission that alcohol would likely show up in=
his
urine specimen. Based on this evidence, we can conclude that Mr. Cagebird d=
id not
engage in an interactive process, much less an interactive process that was
timely or in good faith. Bultemeyer v. Fort Wayne Comm=
unity
Schools provides an unambiguous example of an employer who failed to en=
gage
in an interactive process to determine reasonable accommodation for a disab=
led
employee. Upon appeal, the court reviewed the facts of the case in the
“light most favorable” to the plaintiff, and thus found
“[that the employer] fired [the plaintiff] as soon as it could, and w=
hen
he presented a request for reasonable accommodation, [the employer] ignored=
it,
saying that it came too late. This is, again, an example of a party to the
interactive process acting in bad faith.”[27] The court continued to state that, “Had the trial court examined
these facts in the light most favorable to Mr. Bultemeyer, as we do here, it
would not have granted… motion for summary judgment.”(id.). The=
se
facts are strikingly similar to Mr. Freshman’s case and their
interpretation provides a precedent that is binding on this court. Mr. Fres=
hman
also attempted to request for accommodation from his employer, however he w=
as
instead given a random drug test and immediately terminated pursuant to Cag=
ed
Bird Burritos employee policy. There is sufficient evidence to suggest that=
Mr.
Cagebird, wanting to rid himself of a “problem employee,” did n=
ot
act in good faith and fired Mr. Freshman under the guise of Caged Bird
Burritos’ zero-tolerance drug and alcohol policy. It is precisely for
this reason that the ‘Reasonable Accomodation’ requirement incl=
udes
the sub-issue of ‘failure to engage in an interactive process.’=
[28] CONCLUSION By: ______________________ Rea N. King, Attorney at Law &=
nbsp;
III. Mr. Freshman’s alcoholism
constitutes a physical disability.
=
Mr. Freshman has supported the complaint against Caged Bird Burritos f=
or failure to provide reasonable accommodation and failure to engage in an =
interactive process under the FEHA. His case meets all the elements necessa=
ry to sustain a cause of action against Caged Bird Burritos and Mr. Freshma=
n provides substantial evidence to support each element. As a result, this =
Court should reverse the trial court's erroneous decision to award summary =
to Caged Bird Burritos and remand the appellant’s claims of failure t=
o reasonably accommodate and failure to engage in an ‘interactive pro=
cess’ for further proceedings.DATED: September 14, 2006 =
&nb=
sp; =
Respectfully submitted,
[1]
[2] Versa Technologies, Inc. v. Superior C=
ourt (1978)
78
[3] Cucuzza v. City of
[4]
[5]
[6] Cal = Gov Code § 12940 (2006) <= /p>
[7]
[8] Cita= tion Number 12345 in violation of California Vehicle Code §21200.5 – Riding Bicycle Under the Influence
[9] Haltom v. Southland Title of
[10] =
Barnett
v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, at p. 1112 [vacated on
other grounds in U.S. Airways Inc. v. Barnett (2002) 535
[11] Haltom v. Southland Title of
[12] Gosvener v. Coastal Corporation, et al=
.
(1996)
[13]
[14] Cal= Gov Code § 12926.1 (2006) Part 2.8. Department of Fair Employment and Housing &nbs= p;Ch. 4.
[15]
[16] The National Council on Alcoholism and Drug Dependence: http://www.ncadd.org/facts/defalc.html
[17]
[18] Full time: working 32 or more hours per week.
[19] Sta=
te
of
[20] Cag= ed Bird Burritos is open from 9 a.m. to 12 a.m., daily.
[21] Cal= Gov Code § 12940 (2006)
[22] Mr. Freshman’s duties included chopping beef, chicken, tomatoes and lettu= ce, grating cheese, boiling beans and rice and assembling burritos.
[23] Bultemeyer v. Fort Wayne Community Sch=
ools
1996
[24]
[25] = Beck, 75 F.3d at 1135; quoted from Bultem= eyer v. Fort Wayne Community Schools 1996 U.S. App. LEXIS 29952
[26] Cal= Gov Code § 12940 (2006)
[27] Bultemeyer v. Fort Wayne Community Sch=
ools
1996
[28] Cal= Gov Code § 12940 (2006)