Legal Analysis: Kao v. USF (2014)

The Appellate Court decision in Kao v. USF (2014) contains the apposite finding (see Court Summary—document link available from main webpage under section labeled Reference Documents & Court Summary, pg. 14):

• Kao contends that a "psychological examination by an employer-chosen doctor cannot be job related and consistent with business necessity unless the employer uses the interactive process." Sometimes, but not always. An employer must reasonably accommodate an employee's disability unless doing so would produce undue hardship to its operation, (Gov. Code, § 12940, subd. (m)), and an employer has an additional duty "to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations . . . ." (Gov. Code, § 12940, subd. (n).) FEHA thus ties the interactive process to disability accommodations, not FFDs. (Compare Gov. Code, § 12940, subds. (f) & (n).) The requirement for an interactive process was not implicated here because Kao never acknowledged having a disability or sought any accommodation for one.

• Unless a disability is obvious, it is the employee's burden to initiate the interactive process. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62, fn. 22; 2 Wilcox, Cal. Employment Law (2013) § 41.51[3][b], p. 41-278.) Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit "reasonable medical documentation confirm[ing] [its] existence." (Cal. Code Regs., tit. 2, § 11069, subd. (d)(2).) Kao did nothing of the sort.

The Appellate Court cited Cal. Code Regs., tit. 2, § 11069, subd. (d), which reads:

• Obligations of Applicant or Employee. The applicant or employee shall cooperate in good faith with the employer or other covered entity, including providing reasonable medical documentation where the disability or the need for accommodation is not obvious and is requested by the employer or other covered entity, as follows: | (1) Reasonable medical documentation confirms the existence of the disability and the need for reasonable accommodation. Where necessary to advance the interactive process, reasonable medical documentation may include a description of physical or mental limitations that affect a major life activity that must be met to accommodate the employee. Disclosure of the nature of the disability is not required. | (2) If reassignment to an alternate position is considered as an accommodation, the employee shall provide the employer or other covered entity information about his or her educational qualifications and work experience that may help the employer or other covered entity find a suitable alternative position for which the employee is qualified and for which the employee can perform the essential functions. | (3) An employee's mental or physical inability to engage in the interactive process shall not constitute a breach in either the employee's or the employer's obligation to engage in a good faith interactive process. | ... [Altogether, ten elements including conditions and limitations of such request and warranted response are delineated.]

[The particular citation of the Appellate Court to "Cal. Code Regs., tit. 2, § 11069, subd. (d)(2)," the second of the ten elements, was apparently a typographical error—see remarks on main webpage, section labeled Reference Documents & Court Summary—which though present in the court opinion published on the official California Appellate Courts Case Information System at appellatecases.courtinfo.ca.gov as of April 2022, which is examined herein, was corrected in the print publication, Reports of Cases Determined in the District Courts of Appeal of the State of California, also referred to as California Appellate Reports, and updated in legal databases such as LexisNexis; the latter version bears citation 229 Cal.App.4th 437. The correction may be found on page 450 of the updated document, found on the link following, which was downloaded from cite.case.law, the website corresponding to the Caselaw Access Project (CAP), maintained by the Harvard Law School Library Innovation Lab; redactions are those of the CAP and may reflect copyright considerations—note specifically the change, "Cal. Code Regs., tit. 2, § 11069, subd. (d)(1)":

• 229 Cal.App.4th 437.

• Notice. An employer or other covered entity shall initiate an interactive process when: (1) an applicant or employee with a known physical or mental disability or medical condition requests reasonable accommodations, or (2) the employer or other covered entity otherwise becomes aware of the need for an accommodation through a third party or by observation, or (3) the employer or other covered entity becomes aware of the possible need for an accommodation because the employee with a disability has exhausted leave under the California Workers' Compensation Act, for the employee's own serious health condition under the CFRA and/or the FMLA, or other federal, state, employer or other covered entity leave provisions and yet the employee or the employee's health care provider indicates that further accommodation is still necessary for recuperative leave or other accommodation for the employee to perform the essential functions of the job. An employer's or other covered entity's offer to engage in the interactive process in response to a request for such leave does not violate California Code of Regulations, title 2, section 11091(b)(1) & (b)(2)(A)1., prohibiting inquiry into the medical information underlying the need for medical leave other than certification that it is a "serious medical condition."

The court also cited the decision in Gelfo v. Lockheed Martin Corp. (2006), footnote 22, which reads in full:

• Typically, an applicant or employee triggers the employer's obligation to participate in the interactive process by requesting an accommodation. (§ 12940, subd. (n).) Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266; see also Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115 [ADA].)

• 1 a : something that is carried : LOAD <a donkey hidden under his ∼ of firewood> <a ∼ of dust carried by the wind> <images carry the ∼ of the poem's effect>  b obsolete : a child in the womb  c : something that is borne as a duty, obligation, or responsibility often with labor or difficulty <the ∼ of empire> <executive ∼s > <tax ∼s >  d : the aggregate load of instruments supplied with current by an instrument transformer in proration usually downward from the actual load in the circuit being metered  2 : something that weighs down, oppresses, or causes worry <she came with little but her ∼ of fear> : ENCUMBRANCE <to have the ∼ of a foreign tongue removed was ... an inexpressible relief --William Black>

• 1 : an act of obligating oneself to a course of action : a putting under a promise, vow, or oath (as in initiation into an organization)  2 a : an obligating factor or instrument : something (as a promise, vow, or demand of ideals or conscience) that binds or constrains to a course of action : the obligating power inherent in such a factor or instrument <the ∼s of conscience>  b : a bond with a condition annexed and a penalty for nonfulfillment; broadly : a formal and binding agreement or acknowledgment of a liability to pay a specified sum or do a specified thing  c : an investment security <corporate bonds and other ∼s >  3 a : something that one is bound to do or forbear : an imperative duty (as imposed by promise, religion, conscience, ideals, or social standards)  b : a duty arising by contract : a legal liability

• A weight to be carried literally; or figuratively, as a burden of sorrow or sin.

• 1. In an early and narrow sense, a bond or deed under seal wherein a person binds himself under penalty to do a thing. In the modern and popular sense, that which binds, as an oath, vow, promise, contract, or debt. | 2. The word is derived from the Latin word "obligatio," tying up; and that from the verb "obligo," to bind or tie up; to engage by the ties of a promise or oath, or form of law; and obligo is compounded of the verb ligo, to tie or bind fast, and the preposition ob, which is prefixed to increase its meaning.

• A burden is a generic term referring to a restriction on a use or activity. Often, the term arises in property law. For instance, real property may carry an intangible burden in the form of covenants or easements. These burdens generally prohibit certain activities, impose building restrictions, and obligate owners to perform certain duties like ensuring certain areas are exposed to sunlight or keeping a road in usable condition. | In the realm of constitutional law, governments are not allowed to unduly burden the rights of the populace. Whether a law unduly burdens a right or not is generally determined by a categorical scrutiny test. | Furthermore, the doctrine of preclusion prevents state governments from burdening federal policy on certain issues. For example, the Dormant Commerce Clause precludes states from burdening interstate commerce. In this context, a burden is generally a state law that unduly restricts the free flow of goods and services between states. | In the field of civi procedure, a burden refers not to a restriction but to a procedural requirement a party must meet. For example, a plaintiff hoping to recover in a tort action must meet their burden of proof by establishing by a preponderance of the evidence that the defendant 1. Caused harm to the plaintiff, 2. Owned the plaintiff a duty, and 3. Breached that duty. | [Last updated in June of 2022 by the Wex Definitions Team]

• The popular meaning of the term "obligation" is a duty to do or not to do something. In its legal sense, obligation is a civil law concept. An obligation can be created voluntarily, such as one arising from a contract, quasi-contract, or unilateral promise. An obligation can also be created involuntarily, such as an obligation arising from torts or a statute (e.g. California Uniform Interstate Family Support Act). An obligation binds together two or more determinate persons. Therefore, the legal meaning of an obligation does not only denote a duty, but also denotes a correlative right—one party has an obligation means another party has a correlative right. The person or entity who was liable for the obligation is called obligor; the person or entity who holds the correlative right to an obligation is called obligee. | Some common uses of the term "obligation" in a legal sense include: | • The term "contractual obligation" refers to the duty to pay or perform some certain acts created by a contract or an agreement | • "Conditional obligation" means the duty to pay or perform certain acts depending on the happening of an event. | • "Current obligation" means the obligation that is currently enforceable. | • "Heritable obligation" means a legal obligation or the related right is not ended by the death of the person who was liable for the obligation or who held the right. The heritable obligation. The Louisiana Civil Code 1765 stipulates that an obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor. | [Last updated in July of 2021 by the Wex Definitions Team]

With the understanding that "obligation" carries a stricter sense than "burden," the statement of the court in Gelfo v. Lockheed Martin Corp. (2006) is consistent with Cal. Code Regs., tit. 2, § 11069, subd. (b). The appellate court in this case, citing the trial court, found plaintiff, Gelfo (a former employee of the Lockheed Martin Corporation who, though subjected to layoff in October 2000, was placed on a recall list making him automatically eligible for rehire as a metal fitter or in a related job classification for up to five years, was offered a distinguishable, i.e. one not in either category, position as a plastic parts fabricator and assembler having, at Lockheed Martin's invitation, successfully completed a ten week allied training course, February 2002—and which offer was subsequently revoked on the basis of Lockheed Martin's review of medical information corresponding to a worker's compensation action for a back injury, sustained September 2000, in spite of which Gelfo continued to work until his layoff), was prohibited from being classified as actually disabled (Gelfo asserted that as of February 2002, he had successfully recovered from the injury):

• ... based on his "clear, unequivocal, uncontroverted testimony ... that he does not have a disability."

• With respect to his ability to engage in the major life activity of working, the trial court correctly observed Gelfo was firmly convinced and unwavering in his belief he could have performed the job Lockheed denied him. When told he had been denied the fabricator position due to medical restrictions imposed in his workers' compensation action, Gelfo told Taylor "he really didn't have any limitations," and purportedly returned to Pratley [the orthopedic surgeon who evaluated the worker's compensation claim on behalf of Gelfo from 2000, which was settled in his favor] who agreed the restrictions [on physical activities in connection with worker's compensation] should be lifted. Later, Gelfo told Lockheed he was performing duties identical to those required of a fabricator for another employer, without accommodation, injury or incident. In short, Gelfo conceded he felt he could do anything.

• By delineating the protections afforded in section 12926 to persons "regarded as" disabled, the Legislature intended "to provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity." (§ 12926.1, subd. (d).)

• The statute's plain language leads to the conclusion that the "regarded as" definition casts a broader net and protects any individual "regarded" or "treated" by an employer "as having, or having had, any physical condition that makes achievement of a major life activity difficult" or may do so in the future. (§ 12926, 140 Cal. App. 4th 34, *52; 43 Cal. Rptr. 3d 874, ***35 2006 Cal. App. subd. (k)(4), (5).)

• On these issues, which are novel to California and on which the federal courts are divided, we conclude that employers must reasonably accommodate individuals [applicants or employees] falling within any of FEHA's statutorily defined "disabilities," including those "regarded as" disabled, and must engage in an informal, interactive process to determine any effective accommodations.

• After exhausting his administrative remedies, Gelfo filed this action on March 30, 2003. He alleged causes of action for: (1) disability discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; (3) failure to engage in timely good faith interactive process in violation of FEHA; and (4) wrongful termination in violation of public policy. | In due course, Lockheed moved for summary judgment or, in the alternative, summary adjudication, arguing the common law cause of action for wrongful termination in violation of public policy was time-barred. Summary adjudication was granted. | A six-day jury trial was conducted in July 2004 on the three remaining claims. After the parties rested, Lockheed sought a directed verdict on all causes of action and the claim for punitive damages. The motion was partially granted, and all but one portion of Gelfo's first cause of action for disability discrimination was dismissed. By directed verdict, the trial court found Gelfo did not have an "actual" disability. Based on that finding, the court concluded Lockheed had no legal duty to provide a reasonable accommodation to Gelfo or to engage in an interactive dialogue with him, and dismissed his second and third causes of action. The court also found Gelfo failed to establish an entitlement to punitive damages. The sole claim remaining for the jury's determination was whether Lockheed violated FEHA by refusing to rehire Gelfo in February 2002 because it "regarded" him as a person with a physical disability. | Following deliberations, the jury returned a special verdict stating Lockheed did not "mistakenly believe that [Gelfo's] low back injury limited his ability to work." From a judgment entered in favor of Lockheed, this appeal ensued.

• In sum, when an employer needs to fill a position and an applicant or employee desires the position, the interactive process is designed to bring the two parties together to speak freely and to determine whether a reasonable, mutually satisfactory accommodation is possible to meet their respective needs. (See Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th 935, 950 [ 62 Cal.Rptr.2d 142] [noting that a reasonable accommodation envisions a cooperative exchange of information "`between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions'"].) We conclude the trial court erred in directing a verdict for Lockheed on the cause of action for failure to engage timely and in good faith in the interactive process to determine effective reasonable accommodations. | The determination of error is based on the court's mistaken determination FEHA does not impose on an employer a duty to engage in discussions with an applicant or employee who is not actually disabled.

• The judgment [in favor of defendant, Lockheed Martin] is reversed as to: (1) the cause of action for disability discrimination in violation of Government Code section 12940, subdivision (a), based on the allegation Lockheed refused to hire Gelfo because it regarded him as a physically disabled person; (2) the cause of action for failure to provide reasonable accommodation in violation of Government Code section 12940, subdivision (m); and (3) the cause of action for failure to engage in the interactive process in violation of Government Code section 12940, subdivision (n). The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment [in favor of defendant, Lockheed Martin—plaintiff's fourth cause of action and the matter of plaintiff's entitlement to punitive damages] is affirmed.

The natural inference of the reliance of the Appellate Court on the authority of these sources—Gelfo v. Lockheed Martin Corp. (2006) and Cal. Code Regs., tit. 2, § 11069—is that the Court's decision affirmed these as valid and current law in California (also, the controlling legal standard as of 2009, the year of my discharge). In particular, notwithstanding the precedent of Kao v. USF (2014), the text (and regulatory effect) of Cal. Code Regs., tit. 2, § 11069 (acknowledging renumbering from § 7294.0, October 2013) remains unchanged from its nascence in December 2012 to the present (as of this writing, August 2022), and was in turn meant to codify case law which was current as of 2009, the year of my discharge (for reference see: document link Petition for Review under section labeled Reference Documents & Court Summary on main webpage, pg. 2 - 6 and further, in particular, pg. 17 - 18; document Legal Brief 2, from link Post-Trial Documents under the same section of main webpage, pg. 5 - 6; document Legal Brief 3, from link Post-Trial Documents, pg. 27 - 30; and document Legal Brief 4, from link Post-Trial Documents, pg. 7). The analysis of the sources, Gelfo v. Lockheed Martin Corp. (2006) and Cal. Code Regs., tit. 2, § 11069, demonstrate a substantial inconsistency with the precedent in Kao v. USF (2014) which appears an extraordinary challenge to resolve from a plain text, interpretive, legal perspective.

The following links contain the full text of the original source material (legal authority) referenced in the analysis supra:

• Cal. Code Regs., tit. 2, § 11069;
• Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34 (2006). (The latter was downloaded from cite.case.law, the website corresponding to the Caselaw Access Project (CAP), maintained by the Harvard Law School Library Innovation Lab, and contains redactions apparently related to copyright.)

As illustration of the confusion the latter decision might cause, the reader is directed to the following webpage published by the California Department of Human Resources (serving all persons employed by the government of the state of California) at www.calhr.ca.gov: https://www.calhr.ca.gov/state-hr-professionals/Pages/Reasonable-Accommodation.aspx; which is archived as of December 22, 2022, with Perma.cc at the link: https://perma.cc/R9BR-BY4B. Note herewith that on this latter webpage under rubric, "Medical/Physical Examination Documentation" is a link/citation to "2 CCR, Section 11069: Interactive Process," whereby a reader of the webpage upon left-click is redirected to the entirety of the text of Cal. Code Regs., tit. 2, § 11069 as archived (from which latter link related to www.calhr.ca.gov this Perma.cc archive was created) at https://perma.cc/X9PU-KTCF, found in the paragraph directly supra; and further that on this specific California Department of Human Resources webpage, there is no mention of the Appellate Court decision, Kao v. USF (2014). The relevant behavior of the webpage as archived at https://perma.cc/R9BR-BY4B, can be authenticated by hovering the cursor over the link corresponding to "2 CCR, Section 11069: Interactive Process," whereby the link address therewith should appear in the lower left of the screen, and although of some length, reflects use of third party vender govt.westlaw.com. A thorough verification can be performed by selecting the option, "Show Record Details" at the top right of the Perma.cc record, downloading the archive as a WARC file [WARC refers to (Web ARChive) file format], and opening the downloaded .warc file with a web based reader such as found at https://ReplayWeb.page, which does not require installing software on one's personal computer. The use of ReplayWeb.page is endorsed by Perma.cc as discussed at its blog link: https://perma.cc/JJ3D-5B5A. The Perma.cc links, generally, also provide option for a reader to "View the live page," which can be located towards the upper right of the record, along with an informative option, titled, "What is Perma.cc?" adjacent.

In connection with the feature of Kao v. USF (2014) that, as part of the FFDE, I would have been required to waive right to access the diagnostic assessments and evaluations of the examiner (i.e., resulting psychiatric report, or separately, records correlative) via a mandatory "consent form," such aspect might be found within the scope of the Appellate Court's apposite decision that I was not entitled access to the interactive process which, as noted supra, obliges both parties, "make available to the other information which is available, or more accessible, to one party." Conceivably, if an FFDE resulted in a determination of functional limitations which cannot be reasonably accommodated, employment could be discharged on that basis; and whereafter, a subsequent declaration of disability would be rendered moot as to the interactive process provided for by the California Fair Employment and Housing Act. This is speculative, and examination hereto opens inquiry as to the enforceability of such a clause, in a consent form, should the FFDE find an employee has functional limitations for which reasonable accommodations are available. As to the latter, the Appellate Court in Kao v. USF (2014), accounting the authority supra upon which it relied, may have understood "declaration of disability" to entail proffer of medical documentation that confirms existence of a disability (with disclosure of the nature of the disability not required) and that inventories concomitant functional limitations; this having been fulfilled by the FFD examiner, would initiate the interactive process, for which providing information in accord, need not be retroactive whereupon, and need not warrant disclosure to the employee of the FFD examiner's diagnostic assessments and evaluations (i.e., resulting psychiatric report, or separately, records correlative) beyond—a catalog of functional limitations, which latter information was to be made available to the university as part of the FFDE regardless of the outcome (see the "consent form" attached to Court Summary). Although counterintuitive, this conjecture is consistent with the novel precedent established by the Appellate Court which apparently rejects a plain text apprehension: of Cal. Code Regs., tit. 2, § 11069, subd. (b)(2), and global sense of Gelfo v. Lockheed Martin Corp. (2006), as indicated in this analysis.

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