Nealy suffered additional on-the-job injuries in August, 2006. Two weeks later, his doctor cleared him to perform "light duty, semi-sedentary office work," but stated that if no such work was available, Nealy should be considered temporarily totally disabled. The City had no such position available, and Nealy did not return to work.
Nealy met with the City's accommodations committee in 2008 and again in 2010 and asked to be moved back to his old job of solid waste equipment operator. The City declined, stating that Nealy could not perform the essential functions of the position, with or without accommodation.
The City told Nealy that it would consider him for any vacant position for which he was qualified that was not a promotion. It told him of three such positions and told him how to find additional open positions. Nealy applied for one such position, but did not qualify. Later in 2010, the City told Nealy that it could not provide him with an accommodation into an alternative position because he was not qualified for the only available position that would not be a promotion.
Nealy filed his complaint with the DFEH and obtained his right-to-sue notice in January, 2011. He filed suit in February, 2011, alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. The Superior Court granted the City's motion for summary judgment, and the Court of Appeal affirmed, holding as follows:
The trial court properly held that the statute of limitations prevented Nealy from recovering for acts prior to January, 2010, and Nealy failed to show that the continuing violation doctrine applied:
He makes no attempt to show how the City's acts from August 2006 to 2010 were "sufficiently similar in kind," that they "occurred with reasonable frequency," or that the pre-2010 acts did not "acquire a degree of permanence" before 2010.Nealy could not prevail on his cause of action for failure to provide reasonable accommodation because the undisputed evidence showed that he could not perform all of the essential functions of a solid waste equipment operator, with or without reasonable accommodation. Even if Nealy were correct that one of the essential functions identified by the City was not in fact "essential," he did not show that he could perform a number of other essential functions, with or without accommodation.
Nealy could not request that the City accommodate his disability by removing one or more of these essential functions from his responsibility. Removing an essential function from a position would not be a reasonable accommodation.
While Nealy could have requested that the City move him to a comparable position as a reasonable accommodation, Nealy presented no evidence that the City had any comparable positions for which he was qualified during the statutory time period at issue. Further, the City had no duty to provide Nealy with an indefinite leave of absence until such a position became available.
Because Nealy could not perform the essential functions of the operator position, he was not a qualified individual and could not prevail on his disability discrimination cause of action.
Nealy could not prevail on his cause of action for failure to engage in the interactive process because he failed to identify any reasonable accommodation that would have allowed him to do his job. His argument that the City should have retrained him failed because he did not detail what type of retraining would have allowed him to perform the essential functions of his job or a comparable available position.
Finally, Nealy could not prevail on his retaliation cause of action because requesting reasonable accommodation does not constitute protected activity under the FEHA, and Nealy did not show that he engaged in any other protected activity.