Filed 6/28/13 Schwaia v. Lakeside Union School Dist. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SHERRAL ANN SCHWAIA, D060314
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2008-00065857- CU-OE-EC) LAKESIDE UNION SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C.
Sturgeon, Judge. Affirmed.
The Spencer Law Firm, Marilyn M. Spencer and Arthur H. Skola for Plaintiff and
Appellant.
Stutz Artiano Shinoff & Holtz, Daniel R. Shinoff and Paul V. Carelli IV, for
Defendants and Respondents. INTRODUCTION
Sherral Ann Schwaia appeals from a judgment finding her employer, Lakeside
Union School District (District), did not violate the California Fair Employment and
Housing Act (FEHA) (Gov. Code, § 12900 et seq.)1 by, among other acts, failing to
reasonably accommodate her disability and failing to engage in the interactive process in
good faith. She contends the undisputed evidence shows her employer violated FEHA in
both respects and, therefore, the court erred in rendering a judgment in the District's
favor. We conclude the court did not err in this manner and affirm the judgment.
BACKGROUND2
Schwaia is a school bus driver for the District. Her position includes both indoor
and outdoor work. The District has two types of buses: a longer Type-1 bus and a
shorter Type-2 bus. At the beginning of 2004, Schwaia drove a Type-1 bus. At that
time, some of the Type-2 buses had air conditioning, but the Type-1 buses did not.
In January 2004 or earlier, Schwaia began having symptoms of multiple sclerosis
(MS). In March 2004 a neurologist diagnosed her with the disease.
MS is a progressive, autoimmune disease affecting the central nervous system,
particularly the brain and spinal cord. It is unpredictable in that a patient can have an
1 Further statutory references are also to the Government Code unless otherwise indicated.
2 "Following the usual rules on appeal from a judgment rendered after a trial, we view the facts in the light most favorable to the judgment." (Blanks v. Seyfarth Shaw LLP (2009) 171 Cal.App.4th 336, 346, fn. 2.)
2 attack anywhere along the central nervous system at any time and of any severity.
Common symptoms of the disease include visual problems and weakness in the
extremities. The disease may impair an individual to the point the individual cannot
safely operate a motor vehicle.
After receiving the diagnosis, Schwaia told Norman Lumpkin, the District's then
director of maintenance operations and transportation, she had MS and provided him with
general information about the disease. Lumpkin researched the disease further and
questioned whether a person with MS could safely drive a school bus.
Meanwhile, on April 1, 2004, Schwaia saw a nurse practitioner. The nurse
practitioner worked for Schwaia's neurologist, who specialized in the treatment of MS.
Schwaia told the nurse practitioner she worked in a "very hot bus" with no air
conditioning. According to the nurse practitioner, exposure to heat, meaning anything
over 65 degrees, can cause a patient's symptoms to recur. In Schwaia's case, exposure to
heat could cause symptoms of weakness and numbness in her legs and arm to recur.
Consequently, the nurse practitioner thought it would be best if Schwaia worked in
an air-conditioned bus and she wrote Schwaia a note stating, "Sherral Schwaia has a
condition that requires an air-conditioned environment at all times. Heat may exacerbate
her condition. If you have any further questions, please contact my office at [phone
number]. [¶] Thank you for your understanding." At trial, the nurse practitioner
clarified that by air-conditioned environment at all times she meant Schwaia should have
"an air-conditioned bus at all times."
3 Schwaia gave the note to the District. Lumpkin communicated its contents to his
supervisor, Kamran Azimzadeh, the District's deputy superintendent. Azimzadeh
instructed Lumpkin to provide Schwaia with an air-conditioned bus. Within a few days
of receiving the note, Lumpkin provided Schwaia with one of the Type-2 buses that had
air conditioning.
The Type-2 buses usually carry disabled students, some of whom need assistance
getting on and off. The District's rules prohibit a bus from continuously idling when a
driver gets out of it. Instead, the driver must shut the bus off, remove the key, and put it
away. After the driver is done assisting the student, the driver must start the bus up
again.
Not long after the District provided Schwaia with an air-conditioned bus, she
requested the District install an interlock device on the bus.3 The device keeps the bus's
engine running when the driver leaves the driver's seat to load and unload students, which
allows the air conditioning to stay on continuously. Schwaia told Lumpkin she wanted
the device to maintain an air-conditioned environment at all times while she was on the
bus. Schwaia never told Lumpkin she needed the device because the existing air
conditioning in the bus was insufficient by itself to alleviate or control her MS symptoms.
Lumpkin spoke with Azimzadeh about the request and Azimzadeh asked Lumpkin
to research the device. Lumpkin obtained the necessary information and provided it to
3 She also requested the ability to go home when she felt sick and to have a substitute driver accompany her when it was hot. These requests are not at issue in this case. 4 Azimzadeh. The cost of the device was $1,000 or less; however, installation of it
required approval from the California Highway Patrol (CHP). Azimzadeh told Lumpkin
he would get back to him on the matter.
Sometime before June 30, 2004, Lumpkin saw Schwaia using a cane to walk. The
same day she asked Lumpkin to have another driver drive for her while she rode the bus.
Lumpkin told her that if she was ill, she needed to report she was sick and go home.
Lumpkin contacted Azimzadeh and relayed his concern about Schwaia being unable to
safely drive a bus. Azimzadeh shared the same concern.
The District's neurology expert testified MS definitely has the potential to interfere
with a person's ability to safely drive a commercial vehicle, and Schwaia appeared to
have worked in 2004 while experiencing symptoms raising safety concerns. The expert
further testified that, although exposure to heat can make an MS patient feel worse,
patients with MS do not need to be in an air-conditioned environment at all times and
such a requirement would be impractical to implement. He also testified Schwaia's
medical records did not include any findings indicating the lack of air conditioning
caused an exacerbation of her symptoms and, in his opinion, Schwaia's periodic need to
exit her bus and go outside in the heat for short durations to load and unload children did
not raise a concern about heat exposure.
The District's bus drivers bid by seniority for bus routes in September, January,
and June. In the summer of 2004, Schwaia bid for and obtained a route as a bus aide,
rather than as a bus driver. She bid on this route because it allowed her to work 25 hours
as an aide, instead of 20 hours as a driver, and she would make more money.
5 In September 2004 Lumpkin provided Schwaia with a bus driver job description.
He asked her to have her doctor review the job description and provide the District "with
a medical opinion about the job duties and any limitations placed upon you by your
illness."
In October 2004 Lumpkin spoke with Schwaia and again asked her to provide the
District with a medical opinion from her doctor about her ability to drive a bus and any
limitations she had. Schwaia thought Azimzadeh was out to get her and told Lumpkin
she would not provide the information. Lumpkin subsequently sent Schwaia a memo
stating she had four days to supply the requested information or she would be placed on
sick leave. When Schwaia did not supply the requested information within the specified
time frame, Lumpkin sent her a letter stating she had to supply the requested information
within 12 days or he would recommend disciplinary action against her, up to and
including her dismissal.
In late October, Schwaia provided the District with a handwritten note from her
neurologist indicating she was "currently physically capable of doing all her daily job
functions." However, the note also stated the neurologist could not "certify her to drive
school [buses] because we do not perform driving tests here at Scripps Clinic." The
District's neurology expert testified the note was contradictory because driving a bus was
Schwaia's daily job function. Of additional relevance here, the note did not state Schwaia
needed an air-conditioned bus, an interlock device, or any other accommodation to do her
job.
6 After receiving the note, Lumpkin sent Schwaia another letter indicating the
District needed a medical professional to advise whether further periodic reviews of her
condition were necessary. Instead of supplying the additional information, Schwaia filed
a grievance, claiming the District's request amounted to discrimination.
Meanwhile, in November 2004 Schwaia applied to the DMV for an endorsement
on her driver's certificate limiting her to driving only Type-2 buses with hydraulic brakes.
At that time, the District required its drivers to be able to drive both Type-1 and Type-2
buses and, consequently, did not permit its drivers to have this endorsement. However,
Schwaia requested the District allow her to have the endorsement and the District agreed
to accommodate her request.
Then, in February 2005 while her grievance was pending, Schwaia's neurologist
handwrote an addendum to his earlier note. The addendum indicated he could not state
how long the opinions expressed in his earlier note would apply and he would update
them if any significant changes occurred. The addendum also indicated that, unless a
new problem appeared, Schwaia only needed to be seen once a year. Azimzadeh never
saw the note and Lumpkin could not recall ever seeing it.
Schwaia's grievance proceeded through various levels to mediation. During a
break in the mediation, Azimzadeh spoke with Schwaia and ask her how she was doing.
She mentioned she would like an interlock device. He told her he would look into
providing the interlock device if medical professionals recommended it. Schwaia never
provided the District with any document from any medical provider indicating she
needed the interlock device to perform the essential functions of her job.
7 During the mediation itself, Azimzadeh offered to train Schwaia for an indoor job.
Concerned about losing her seniority, Schwaia rejected the offer because Azimzadeh
would not guarantee the job. Azimzadeh explained that his own job was not guaranteed
and he could not guarantee any job within the District.
The mediation ended in an agreement that Schwaia would submit to a fitness-for-
duty examination at the District's expense. There was no agreement to provide Schwaia
with an interlock device.
The District's doctor completed the fitness-for-duty examination in March 2005.
The doctor reported that Schwaia had no limitations, her condition was not likely to
interfere with her ability to safely operate a motor vehicle or a school bus, and she could
return to her usual and customary duties as a school bus driver. Schwaia did not contest
or otherwise respond to the doctor's findings. Based on the findings that Schwaia had no
limitations, Azimzadeh decided it was not necessary to install an interlock device on
Schwaia's bus.
In November 2005 Schwaia went for a DMV examination. The District received a
report of the examination stating Schwaia "has multiple sclerosis which is well-controlled
& asymptomatic at this time." In the same report, Schwaia responded "no" under penalty
of perjury to questions about whether she had suffered from any eye disorders, vision
impairments, or hand, arm, leg or foot impairments. The nurse practitioner testified
Schwaia should have responded "yes" to these questions.
In March or April 2006 Azimzadeh saw Schwaia at a party. He asked about her
health and thanked her for permitting the District's doctor to examine her. She told him
8 she still would like to have an interlock device for her bus. Even though no medical
professional indicated the interlock device was necessary to accommodate Schwaia,
Azimzadeh agreed to provide it because Schwaia was a long-term employee, she had
submitted to the fitness-for-duty examination, and he wanted her to be happy.
In May 2006 the District wrote to the CHP requesting approval to have the
interlock device installed on a bus. Two weeks later, the CHP granted the approval.
Within a month, the District had installed the interlock device and the CHP had issued a
certificate attesting it was safely installed and operational.
In August 2008 Schwaia sued the District, Azimzadeh, Lumpkin, and a dispatcher
for violations of the FEHA, including causes of action for disability discrimination,
failure to engage in the interactive process, failure to provide reasonable accommodation,
prohibited medical inquiry and examination, harassment, retaliation, and failure to
prevent harassment and retaliation.
The court granted summary adjudication as to the causes of action for prohibited
medical inquiry and examination, harassment, and retaliation. As a result of this ruling,
the court dismissed the individual defendants with prejudice on the first day of trial.
The court conducted a bench trial as to the four remaining causes of action. The
court ruled against Schwaia and for the District on these causes of action. As part of its
ruling, the court made the following findings:
1. Schwaia's doctor diagnosed her with multiple sclerosis in March 2004.
9 2. The same month Schwaia had her driver's license limited so that she could
only drive a Type- 2 bus.4
3. In April 2004 Schwaia informed the District of the diagnosis and that heat
aggravates her condition.
4. The same month the District moved Schwaia to a Type- 2 bus, which had
5. The parties stipulated Schwaia's causes of action sought damages for March
2004 to September 2006.
6. There was no discrimination in April 2004 because the District
accommodated Schwaia with an air-conditioned bus.
7. There was no discrimination or damages in the summer of 2004 because
Schwaia worked more hours as an aide on a bus than as a driver.
8. In February 2005 Schwaia agreed to submit to a fitness-for-duty
examination by Dr. Hughes.
9. In March 2005 Dr. Hughes reported Schwaia could work without
limitations.
10. No doctor ever requested that Schwaia be accommodated with an interlock
device.
4 The evidence actually indicates this occurred later.
10 DISCUSSION5
I
Standard of Review
Preliminary, the parties dispute the appropriate standard of review on appeal.
Schwaia contends we must review the trial court's judgment de novo. The District
contends we must review the trial court's judgment under the substantial evidence test.
The California Supreme Court set forth the general principles for selecting a
standard of appellate review in Crocker National Bank v. City and County of San
Francisco (1989) 49 Cal.3d 881. The court explained, "Questions of fact concern the
establishment of historical or physical facts; their resolution is reviewed under the
substantial-evidence test. Questions of law relate to the selection of a rule; their
resolution is reviewed independently. Mixed questions of law and fact concern the
application of the rule to the facts and the consequent determination whether the rule is
satisfied. If the pertinent inquiry requires application of experience with human affairs,
the question is predominantly factual and its determination is reviewed under the
substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a
factual context, of legal principles and their underlying values, the question is
5 Schwaia presents no appellate arguments challenging the trial court's judgment as to the causes of action summarily adjudicated or as to the causes of action for disability discrimination and for failure to prevent disability discrimination and harassment. We, therefore, confine our discussion on appeal to her causes of action for failure to provide reasonable accommodation and failure to engage in the interactive process.
11 predominantly legal and its determination is reviewed independently." (Id. at p. 888;
accord Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 (Haworth).)
Whether the District failed to reasonably accommodate Schwaia and whether it
failed to engage in the interactive process in good faith are mixed questions of law and
fact. In most instances, we review mixed questions of law and fact independently unless
the judicial administration concerns for efficiency, accuracy and precedential weight
favor having the trial court determine whether the established facts fall within the
applicable legal standard. (Haworth, supra, 50 Cal.4th at pp. 384-385.) This typically
occurs when the applicable legal standard involves a strictly factual test, such as whether
a party possesses a particular state of mind. (Id. at p. 385.)
The questions presented in this case do not involve the application of a strictly
factual test. Additionally, the judicial administration concerns of efficiency, accuracy
and precedential weight favor an independent review to ensure consistency in the
interpretation and application of FEHA. (Haworth, supra, 50 Cal.4th at p. 386.)
Therefore, we conclude we must independently review the court's determination the
District did not violate FEHA's requirements for providing reasonable accommodation
and engaging in the interactive process. Nonetheless, we give deference to the court's
factual findings that are supported by substantial evidence as the court was in a better
position to evaluate and weigh the evidence. (Id. at p. 385; see also Bradley v.
Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1623-1624
[appellate courts independently review FEHA dispute where the dispute centers on the
application of FEHA to facts].)
12 II
Failure to Reasonably Accommodate
FEHA makes it unlawful for an employer to fail to reasonably accommodate an
employee's known physical or mental disability, unless the accommodation would
produce a demonstrable undue hardship. (§12940, subd. (m).) " 'The elements of a
failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the
plaintiff is qualified to perform the essential functions of the position, and (3) the
employer failed to reasonably accommodate the plaintiff's disability.' " (Lui v. City and
County of San Francisco (2012) 211 Cal.App.4th 962, 971.)
" '[R]easonable accommodation' means 'a modification or adjustment to the
workplace that enables the employee to perform the essential functions of the job held or
desired.' [Citation.] ' "Reasonable accommodation" may include either of the following:
[¶] (1) Making existing facilities used by employees readily accessible to, and usable by,
individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of equipment or
devices, adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.' (§ 12926, subd. (o); see Cal. Code Regs., tit. 2, § 7293.9,
subd. (a); accord, 42 U.S.C. § 12111(9).)" (Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 745.)
Here, the District accommodated Schwaia's disability by reassigning her to an air-
conditioned bus. Additionally, the District allowed her to have a restricted driver's
13 license prohibiting her from driving Type-1 buses, which are not air conditioned. The
District also offered to train her for an indoor position.6 Each of these accommodations
was reasonable under the circumstances.
Although Schwaia preferred the interlock device, "an employer is not required to
choose the best accommodation or the specific accommodation the employee seeks.
Instead, ' " 'the employer providing the accommodation has the ultimate discretion to
choose between effective accommodations, and may choose the less expensive
accommodation or the accommodation that is easier for it to provide.' [Citation.] . . .
[A]n employee cannot make his employer provide a specific accommodation if another
reasonable accommodation is instead provided." ' " (Wilson v. County of Orange (2009)
169 Cal.App.4th 1185, 1194.)
Moreover, none of the medical providers who evaluated Schwaia indicated she
needed an interlock device on her bus to accommodate any limitations caused by her MS.
Rather, at least after September 2004, her medical records consistently indicated her MS
was well controlled with medication, she was asymptomatic, and she had no limitations
affecting her ability to perform the essential functions of her job. (Hanson v. Lucky
Stores, Inc. (1999) 74 Cal.App.4th 215, 229 [an employer may rely on medical provider
opinions to gauge an employee's abilities and limitations].) An accommodation is not
reasonable and an employer is not required to grant it if the accommodation does not
address the employee's limitations or it is not necessary to enable the employee to
6 There is some indication in the record the District further agreed to provide her with a substitute driver, up to five times a year, when she felt tingling in her arm. 14 perform the essential functions of the employee's job. (Scotch v. Art Institute of
California (2009) 173 Cal.App.4th 986, 1012.) Accordingly, we cannot conclude the
court erred in finding the District did not fail to reasonably accommodate Schwaia.
III
Failure to Engage in Interactive Process
FEHA also makes it unlawful for an employer "to fail to engage in a timely, good
faith, interactive process with the employee . . . to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability or known medical condition."
(§12940, subd. (n); Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th
952, 978-979.) "The 'interactive process' required by the FEHA is an informal process
with the employee or the employee's representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job effectively. [Citation.]
Ritualized discussions are not necessarily required." (Wilson v. County of Orange, supra,
169 Cal.App.4th at p. 1195.)
"Once the interactive process is initiated, the employer's obligation to engage in
the process in good faith is continuous. '[T]he employer's obligation to engage in the
interactive process extends beyond the first attempt at accommodation and continues
when the employee asks for a different accommodation or where the employer is aware
that the initial accommodation is failing and further accommodation is needed. This rule
fosters the framework of cooperative problem-solving contemplated by the ADA, by
encouraging employers to seek to find accommodations that really work . . . .' " (Scotch
15 v. Art Institute of California, supra, 173 Cal.App.4th at p. 1013.) " ' "When a claim is
brought for failure to reasonably accommodate the claimant's disability, the trial court's
ultimate obligation is to " 'isolate the cause of the breakdown . . . and then assign
responsibility' so that '[l]iability for failure to provide reasonable accommodations ensues
only where the employer bears responsibility for the breakdown.' " ' " (Nadaf-Rahrov v.
Neiman Marcus Group, Inc., supra, 166 Cal.App.4th at pp. 984-985.)
In this case, when Schwaia first approached the District about her disease and her
need to drive an air-conditioned bus, the District quickly accommodated her request.
When she asked for the interlock device so the bus's air conditioning could run
continuously, the District started looking into the request. Meanwhile, Schwaia bid on
and obtained a route as a bus aide, which obviated the need for the accommodation and
allowed her to earn more money by working more hours.
Concomitantly, Lumpkin's review of the information Schwaia provided about her
disease and his observation of her physical condition caused the District to become
concerned about her ability to perform the essential functions of her job, with or without
accommodation. Consequently, the District asked her for additional medical information
about her disease and its affect on her performance of her job duties. The District's
request led to a formal grievance and mediation between the parties.
Because the District needed to know Schwaia's limitations to determine its
reasonable accommodation obligations, the grievance and mediation process is
appropriately considered part of the interactive process. Additionally, the parties actually
discussed accommodations at varying points during the grievance and mediation process,
16 including the District's offer to train Schwaia for an indoor job and Schwaia's renewed
request for an interlock device. (See also, fn. 5, ante.) As to the latter, the District
indicated it would provide the interlock device if Schwaia established its medical
necessity.
The grievance and mediation process concluded with Schwaia's agreement to
undergo a fitness-for-duty evaluation. The report of the evaluation indicated Schwaia's
disease did not interfere with her job duties and she had no limitations. She never
provided any contrary information from her own medical providers. She also never
provided any information from them indicating she needed the interlock device or even
that she needed to be in an air-conditioned environment 100 percent of the time. Thus,
we cannot conclude the District was responsible for any breakdown in the interactive
process.
Moreover, the record shows the interactive process between the parties was
successful in that the District gave Schwaia several accommodations, including the one
she ultimately sought. The successful accommodation of a disability forecloses a claim
the employer failed to engage in the interactive process. (Wilson v. County of Orange,
supra, 169 Cal.App.4th at p. 1195, citing Hanson v. Lucky Stores, Inc., supra, 74
Cal.App.4th at p. 229, & Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821,
829, fn. 5.) Furthermore, because there is no evidence in the record the interlock device
was necessary to enable Schwaia to perform the essential functions of her job, she has not
established she sustained a remedial injury from any alleged breakdown in the interactive
process. (Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1019 [a
17 plaintiff suffers no remedial injury from the failure to engage in the interactive process
unless the requested accommodation was reasonable and directed to the limitations
created by the employee's disability.].) Consequently, we cannot conclude the court erred
in finding the District did not fail to engage in the interactive process with Schwaia.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
AARON, J.
IRION, J.