California Court Of Appeal Finds The City Of Santa Monica Was Not Required To Eliminate Essential Job Functions To Accommodate Disabled Employee And Engaging In The Interactive Process Does Not Constitute Protected Conduct Under FEHA

February 19, 2015 | Bulletin No. 1234567.8

The California Court of Appeal for the State of California, Second Appellate District upheld the City of Santa Monica's ("City") award of summary judgment in Nealy v. City of Santa Monica (Cal. Ct. App., Jan. 21, 2015, B246634) 2015 WL 632228, finding that the City had not violated California's Fair Employment and Housing Act ("FEHA") when it determined that it could not reasonably accommodate an employee's disability.


Tony Nealy ("Nealy") was a City employee since 1996, serving predominately as a solid waste equipment driver.  In 2003, Nealy injured his knee while moving a large bin and took disability leave until May 2005 when he was cleared for light duty by his physician.  City convened an accommodations committee to find an accommodation that would allow Nealy to return to work.  Nealy asked the committee to assign him as either a clerical worker or as the operator of a particular refuse collection vehicle that utilized an automated side loading arm.  However, the committee assigned Nealy to a lateral position as a groundskeeper.

In early 2006, Nealy met with the committee again and reported that he was having difficulties performing his new duties because of his knee injury.  While the negotiations with the committee  were going on, Nealy injured his back performing his groundskeeper duties.  After two weeks of disability leave, Nealy's doctor cleared him to return to work for light-duty or semi-sedentary office work.  No such work was available, and Nealy remained on disability leave.

In 2008, Nealy again requested to operate the collection vehicle with the automated arm.  The City then reevaluated the essential job functions of that position and determined the position required, among other things, heavy lifting, general equipment maintenance, and inspection, which involved kneeling and bending over.  As Nealy could not perform these duties, the City identified alternative vacant job positions.  Although Nealy applied to two of these vacant positions, he was not qualified for them.  Finding no other options, the City completed a CalPERS disability retirement application for Nealy in 2010.  Nealy then filed a complaint alleging, among other things, a failure to accommodate, disability discrimination, and retaliation in violation of FEHA.  The trial court granted summary judgment in favor of the City.


In upholding the trial court's decision, the Court of Appeal held that the City did not fail to reasonably accommodate Nealy.  The Court noted Nealy's allegation that he could drive the collection vehicle with the automated arm did not address how he would perform the other related essential functions of the position, including moving bins and performing inspections.  The Court held that FEHA did not require the City to eliminate essential functions of the position. 

The Court also dismissed Nealy's argument that the City failed to accommodate him by assigning him to vacant positions because Nealy could not provide evidence he was qualified for those positions.  The Court held that the City was not required to allow Nealy to stay on disability leave until a position he was qualified for arose because the Court refused to require employers to provide such indefinite leaves of absence as a way to accommodate a disabled employee.

Finally, the Court dismissed Nealy's cause of action for retaliation under FEHA, holding that Nealy’s request for a reasonable accommodation and initiation of the interactive process did not constitute protected activity.  As Nealy did not engage in any protected activity, City could not be liable for retaliation. 

In sum, the Court held City was not required to eliminate essential functions of a job, to assign the employee to a position that he was not qualified for, or allow him to stay on indefinite disability leave to accommodate Nealy’s disability.  Furthermore, the Court narrowly construed FEHA's anti-retaliation provisions, finding that merely engaging in the interactive process and requesting an accommodation did not rise to the level of protected conduct. 


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Shane Larsen | 916.321.4500