Jensen v. Wells Fargo Bank

In the breach of contract and breach of implied covenant claims, Jensen alleged generally that her employment was governed by a series of writings and oral representations which Wells Fargo breached. The complaint does not describe these alleged writings and oral representations with any specificity.

Wells Fargo’s Summary Judgment Motion

Wells Fargo moved for summary judgment. In its moving papers, Wells Fargo contended that Jensen’s claims for breach of contract and breach of implied covenant of good faith and fair dealing failed because Jensen was an at-will employee. Wells Fargo presented evidence of a two-page employment offer signed by Jensen in May 1996 which stated that the employment, if she accepted it, would be at will.

Wells Fargo further contended that Jensen had never actually been terminated and pointed to the lack of any evidence that a representative of the bank had ever told Jensen orally or in writing that she was discharged. The statement of undisputed facts set forth evidence to establish that a Wells Fargo vice-president of human resources, Jean Dickten-Phillips, “was assigned to work with [Jensen] to find her a suitable position within [her work] restrictions within the Wells Fargo organization.”^[1] The statement further said that “Wells Fargo continues to send [Jensen] postings regarding open positions within the Wells Fargo organization” and that “Wells Fargo is still willing to work with [Jensen] to locate a suitable position within the Wells Fargo organization.”

Much of the statement of facts consists of descriptions of a series of positions Jensen applied for over the years following the attempted robbery, and an explanation of why she was not selected for each position discussed. For example, paragraphs 17 and 18 of the statement of undisputed facts state: “[Jensen] applied for a Client Services/Rep Operations Wholesale Services position” and “[Jensen] did not have the required skills for the Client Services/Rep Wholesale Services position.” Paragraphs 21 and 22 provide: “On December 9, 1996, [Jensen] applied for a posted Lease Servicing Consultant position” and “The Lease Servicing Consultant job was filled by two internal candidates who were current Wells Fargo employees previously working in the same department.” Paragraphs 23 and 24 provide: “On December 9, 1996, [Jensen] applied for a posted Liquidation Specialist Position” and “The supervisor, Gordon Smith, sent [Jensen] a letter on January 15, 1997, that others with qualifications more closely matched his needs.”

Evidence was also presented that Jensen “refused a courtesy interview in the trust department,” “told Jean Dickten-Phillips that she was afraid of sales, customers, etc., and that she needed an ‘office environment’ ” when Dickten-Phillips attempted to interest her in a human resources opening in April 1997, and “refused a temporary research position in El Monte/Retail General Lending Operations.” The statement of undisputed facts states that Dickten-Phillips “looked into” a position in the Pasadena office, but because it was above a branch and customers occasionally went upstairs, rejected it. The statement attributes the following to Jensen: “[She] said she could not or would not: 1) visit a branch office; 2) perform a sales job; 3) work in certain geographic areas, including El Monte; 4) work in a non-office environment; 5) take a job for less than she was previously earning; 6) accept a temporary position.”^[2]

Discussion

FEHA Claim

A defendant meets its burden on a motion for summary judgment or summary adjudication by proving that one or more elements of a cause of action alleged in the complaint cannot be established, or that there is a complete defense to that cause of action. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 , 1107 [ 252 Cal.Rptr. 122 , 762 P.2d 46 ]; see Code Civ. Proc., § 437c, subd. (o)(2).)

In support of its contention that Jensen was unable to establish any of the essential elements of a FEHA claim, Wells Fargo referred to the elements set forth in Brundage v. Hahn (1997) 57 Cal.App.4th 228 [ 66 Cal.Rptr.2d 830 ], In Brundage, the court stated that a disabled claimant bringing suit under the FEHA “can establish a prima facie case by proving that: (1) plaintiff suffers from a disability; (2) plaintiff is a qualified individual;[^[3] ] and (3) plaintiff was subjected to an adverse employment action because of the disability. [Citation.]” (Id. at p. 236, fn. omitted.) This does not mean that the plaintiff must prove a causal connection between the disability and the adverse employment action by direct evidence. The court acknowledged that the plaintiff can establish the latter element for purposes of a wrongful discharge or adverse employment action claim by showing that “ ‘he or she was subject to an adverse employment action’ ” and that “ ‘he or she was replaced by a non-disabled person or was treated less favorably than non-disabled employees.’ [Citation.]” (Id. at p. 236, fn. 1,

The plaintiff in Brundage, a woman suffering from manic depression, was allegedly terminated for failing to come back to work after taking leave and being absent without permission or explanation. The primary issue in Brundage was whether the employer’s asserted basis for termination was pretextual. The claim in Brundage thus arose under Government Code section 12940, subdivision (a), which provides that it is an unlawful employment practice “[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” The employer established that it had no knowledge of the plaintiff’s disability prior to the termination, and prevailed on summary judgment.

The elements set forth in Brundage apply to a Government Code section 12940, subdivision (a) employment discrimination case, where an employee or prospective employee who is fully qualified and able to perform the functions of a particular position is terminated from the position or not hired for it in the first place, and the suspected reason is the employee’s membership in one of the listed classifications. In that situation, the courts agree that it is the plaintiff’s responsibility to prove that he or she is a member of a protected class set forth in FEHA (such as a person with a disability); that he or she is qualified to perform the duties of the position (with or without reasonable accommodation in the case of a disability claim); and that he or she was subject to adverse employment action or not hired because of the disability or membership in another class described in FEHA. (See, e.g.,

Jensen’s claim is different. Her claim falls under Government Code section 12940, subdivision (k), which makes it an unlawful employment practice “[f]or an employer or other entity covered by this part to, fail to make reasonable accommodation for the known physical or mental disability of an . . . employee.” Since her ordeal, Jensen has concededly been unable to perform the usual functions of branch manager, the position for which she was qualified and in which she was employed until August 1996. The question here is whether Wells Fargo failed to reasonably accommodate her in accordance with subdivision (k); specifically, whether Wells Fargo failed to accommodate her by “reassignment to a vacant position,” one of the methods of “reasonable accommodation” specified in the statutory definition, Government Code section 12926, subdivision (n)(2).^[5]

The elements of a failure to accommodate claim are similar to the elements of a Government Code section 12940, subdivision (a) discrimination claim, but there are important differences. The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual. For purposes of a section 12940, subdivision (k) claim, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. (See, e.g., Smith v. Midland Brake, Inc. (10th Cir. 1999) 180 F.3d 1154 , 1161-1162; AKA v. Washington Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284 , 1300-1301 [ 332 App.D.C. 256 ].) More significantly, the third element discussed in Brundage—establishing that an “adverse employment action” was caused by the employee’s disability—is irrelevant to this type of claim. Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself. (Gov. Code, § 12940, subd. (k).) With these differences in mind, we turn to the evidence set forth in the summary

A

Existence of Disability

Wells Fargo first sought to persuade the court that Jensen’s condition—posttraumatic stress disorder—did not meet the statutory definition of disability as a matter of law. Wells Fargo relied on Muller v. Automobile Club of So. California (1998) 61 Cal.App.4th 431 [ 71 Cal.Rptr.2d 573 ], which held that a mental disorder does not meet the FEHA definition of disability unless it “substantially limits a major life activity.” (Id. at p. 443, fn. omitted.) The court reached this conclusion by borrowing from the statute’s definition of physical disability, which states that a physical condition does not qualify as a disability unless it “ ‘[l]imits an individual’s ability to participate in major life activities.’ ” (Id. at p. 440, quoting Gov. Code, § 12926, subd. (k)(l)(B).) The court recognized that the FEHA definition of mental disability did not contain that phrase or anything like it, but concluded it was a “legislative oversight.” (Muller, at p. 443, fn. 6.) The court in Muller imported part of its definition from the ADA, which states that the disability must “substantially limit[] one or more of the major life activities . . . .” ( 42 U.S.C. § 12102 (2)(A), italics added; see Muller, at p. 440.j Subdivision (k)(l)(B) of section 12926 of the Government Code, the definitional provision for FEHA, states that physical disability includes a disease, disorder, condition, etc., that “[l]imits an individual’s ability to participate in major life activities.” The term “substantially” does not appear. The court disagreed with a contrary holding in Pensinger v. Bowsmith, Inc., supra, 60 Cal.App.4th 709 , in which the court, finding no ambiguity, declined to look beyond the plain language of the statute. (Muller, at p. 443, fn. 6.)

Recently, this court expressed its agreement with Pensinger and disagreement with Muller in Swenson v. County of Los Angeles^[14] (Cal.App.). Our decision in that case is currently on review before the Supreme Court. Until the Supreme Court expresses a contrary decision, we shall continue to adhere to our conclusion that the plain meaning of the language used in the FEHA’s definition of mental disability, and the absence of any potential absurd result from following the plain language, require us to follow the Legislature’s language and give a broader meaning to mental disability than to physical disability.

We are further persuaded of the erroneousness of the decision in Muller by a recent amendment to the FEHA signed by the Governor on September 30,

The court in Barnett was unimpressed with the employer’s purported attempt to accommodate by “offer[ing] that [the employee] could apply for any position for which he was qualified given his restrictions and for which he had sufficient seniority.” (Barnett v. U.S. Air, Inc., supra, 228 F.3d at p. 1117.) The court specifically held that an offer to bid on other jobs, “a right [the employee] already had,” did not represent a reasonable accommodation. (Ibid.) “[R]eassignment involves more than a mere opportunity for disabled employees to compete[.]” (Id. at p. 1118.) Nor did the court accept the employer’s contention that reassignment to the mail room was not ah option since it would have required it to make an exception to its seniority policy. Quoting EEOC guidelines, the court concluded that “ ‘Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended.’ ” (Ibid.', accord, Smith v. Midland Brake, Inc., supra, 180 F.3d at pp. 1164-1165 [“[I]f the reassignment language merely requires employers to consider on an equal basis with all other applicants an otherwise qualified existing employee with a disability for reassignment to a vacant position, that language would add nothing to the obligation not to discriminate, and would thereby be redundant.”]; AKA v. Washington Hosp. Center, supra, 156 F.3d at p. 1304 [“[T]he word ‘reassign’ must mean more than allowing an employee to apply for a job on the same basis as anyone else. An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been ‘reassigned’; the core word ‘assign’ implies some active effort on the part of the employer.” (Fn. omitted.)].)

We recognize that the term “informal, interactive process” is a term utilized by the EEOC in promulgating regulations under the ADA (see 29 C.F.R. § 1630.2 (g)(3) (2000)), and that the regulations promulgated under the version of FEHA in effect at the time relevant to the present case do not contain that terminology. (See Cal. Code Regs., tit. 2, §7293.9 et seq.^[7] ) Without deciding whether all of the details of the reasonable accommodation process described in the federal regulations apply to claims made

First, the evidence established that Jensen was put on unpaid leave while she collected workers’ compensation and long-term disability. Her job was left open for only a short period, but she was told that Wells Fargo would find her a position as branch manager in another location whenever she was ready to come back. Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. (See, e.g., Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 , 226 [ 87 Cal.Rptr.2d 487 ].) It is undisputed, however, that both parties

As to whether a reasonable accommodation was ever offered, DicktenPhillips discussed with Jensen a temporary job and a night job, both situated in El Monte. Jensen was offered the temporary job, and does not dispute that she rejected it. A temporary position is not, however, a reasonable accommodation. It represents, like unpaid leave, a way to put a disabled employee on hold while the attempt to locate a permanent position is ongoing. (See Champ v. Baltimore County (D.Md. 1995) 884 F.Supp. 991 , 999-1000; Nguyen v. IBP, Inc. (D.Kan. 1995) 905 F.Supp. 1471 , 1485-1486.) As far as the permanent position in El Monte was concerned, Jensen made clear in her declaration it was never offered. It cannot, therefore, support summary judgment on the basis that Jensen was offered a reasonable accommodation which she refused.

Turning to the question of whether there was an available reassignment, Wells Fargo never attempted to definitively establish that there were no positions within its organization which met Jensen’s qualifications and restrictions. Instead, it presented evidence through declarations of its supervisory personnel that, with regard to the positions Jensen located and applied for on her own, she either lacked the required skills or lacked some of the preferred qualifications and that the positions went to others who were better qualified.^[9] This begs the question of whether there were other vacant positions within the Wells Fargo organizational structure of which she was unaware or unknowledgeable which might have met her limitations and

Moreover, to the extent Wells Fargo rejected Jensen for positions for which she was qualified because it had applicants who were more qualified or had seniority, it overlooks that when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration. {Barnett v. U.S. Air, Inc., supra, 228 F.3d at p. 1107; Smith v. Midland Brake, Inc., supra, 180 F.3d at pp. 1164-1165; AKA v. Washington Hosp. Center, supra, 156 F.3d at p. 1304.) Having failed to establish unequivocally that Jensen was unqualified for any vacant position within the organization, summary judgment was inappropriate on this ground.

Finally we look at the facts with regard to whether the breakdown in the informal, interactive process was due to Jensen or Wells Fargo. Wells Fargo contends that it provided “individual attention and assistance in an ongoing job search . . . .” The evidence established that prior to the assignment of the matter to Dickten-Phillips in March 1997, Jensen received some informal assistance from Human Resources Manager Lynn Secrest.^[11] Jensen’s declaration makes clear that she was expected to identify possible reassignments from Wells Fargo’s job listings on her own, and that the company liaisons made little effort to identify which, if any, of the vacant positions met her limitations and qualifications or could be altered to accommodate her. Secrest obtained one interview, for an unposted vacancy in the cash management department, which Jensen was not offered.^[12]

Evidence was presented which suggested that Jensen was not fully cooperating with efforts to place her. Although the only actual restrictions clearly

II, III^[14]

Disposition

The judgment is reversed in part and affirmed in part. The matter is remanded to the trial court for further proceedings on the FEHA claim. Costs on appeal are awarded to appellant.

Epstein, Acting P. J., and Hastings, J., concurred.

A petition for a rehearing was denied December 28, 2000, and respondent’s petition for review by the Supreme Court was denied March 14, 2001. Baxter, J., did not participate therein. Chin, J., and Brown, J., were of the opinion that the petition should be granted.