Hessong v. City/County of San Francisco

Filed 8/30/07 Hessong v. City/County of San Francisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this employment discrimination action, the trial court granted respondent City and County of San Franciscos (city) motion for summary judgment on appellant Timothy Hessongs action for violation of the state Fair Employment and Housing Act (FEHA). (See Gov. Code,  12900-12996.) On appeal from the subsequent judgment dismissing his action,^[1]Hessong contends that (1) his objections to evidence should have been sustained; (2) the city deliberately failed to accommodate him; (3) it deliberately violated the law regarding its duty to accommodate him, specifically by its requirement that he file Americans with Disabilities Act (ADA) forms; and (4) there are multiple triable issue of material fact that preclude summary judgment. We affirm the judgment.

I. Facts

A. Employment and Initial Injury

In June 1985, appellant Timothy Hessong was employed by respondent city. He worked for the citys Department of Public Health (department) as a pharmacy technician at San Francisco General Hospital. He first worked the graveyard shift at the inpatient pharmacy, where he processed drug orders for hospital patients. He transcribed physicians orders, removed medications from their packaging, repackaged and labeled medications for patients, filled syringes and large volume IV bags, and did some data entry work. In 1987, Hessong moved to the swing shift in the outpatient pharmacy, where he worked until moving to a split inpatient/outpatient assignment in 1990. He chose this split assignment to limit his contact with patients and to secure a less demanding work environment. About a year later, he exercised his seniority rights to return to the inpatient pharmacy full time, where he remained until 2002.

In 1994, Hessong injured his right hand. When he returned from a workers compensation leave in 1996, his vocational rehabilitation counselor arranged his return with restrictions on keyboarding (20 minutes per hour), cutting and tearing of perforated packaging, and a limit of two or three syringe preparations per day. In May 1996, a consulting doctor recommended a maximum of 20 minutes of data entry per hour and a maximum of two or three syringe fillings per day. The doctor did not know what Hessongs tolerance was for tearing perforated packages. In June 1996, a doctor who examined him as an agreed medical evaluator in connection with Hessongs workers compensation case recommended that he perform no more than 20 minutes of data entry per hour, no more than two or three syringe fillings per day and no more than two hours of intermittent tearing per day. In August 1996, the same doctor certified that Hessong could perform all tasks described on the shift beginning at 3:00 p.m. Hessong did not submit a formal request for accommodation for a disability.

To comply with his work restrictions, the department provided Hessong with ergonomic scissors and a heavy duty paper cutter so that he would not have to tear packaging. He was also given a locked cabinet so that he could prepare medications in advance and distribute them as needed. The minor modifications that the department provided apparently sufficed to permit Hessong to perform his job without difficulty for the next several years. Between 1996 and the end of 2000, he did not make any requests for accommodation nor did he indicate to management that he was having any difficulty performing his job.

B. History of Grievances

Over the course of his employment, Hessong had several confrontations with coworkers and regularly received warnings and negative feedback in his performance evaluations about his lack of courtesy to coworkers, including registry technicians. He was warned about these confrontations, but was never suspended. He admitted that unless the discipline was going someplace, I never really took it to heart.

Hessong also filed multiple grievances against every one of his supervisors. During his last two years of active employment, he filed more than six grievances on his own behalf and on behalf of other employees. Among those grievances, in July 2000, Hessong complained that he was being denied opportunities to work overtime. He later explained that he sought to add two hours to his regular work shifts by means of the grievance process. Hessong also complained at least a dozen times about registry technicians whom he claimed were creating a greater workload for regular employees because of their inadequate job performance.

In February 2002, he filed a charge of discrimination with the state Department of Fair Employment and Housing (DFEH) against his supervisor, John Qaqundah, and the city, alleging verbal harassment and a lack of response when he complained. He alleged that this conduct occurred between December 5, 2001, and January 22, 2002. The DFEH issued a right to sue notice in June 2002.

In March 2003, Hessong filed a complaint against his union with the state Public Employment Relations Board (PERB). In it, he accused the union of breaching its duty of fair representation by failing to pursue several of his grievances, including his two grievances regarding the use of registry technicians at San Francisco General Hospital. PERB dismissed his complaint, and the dismissal was upheld on an appeal taken by Hessong.

In September 2003, Hessong contacted the state Department of Industrial Relations Division of Occupational Safety and Health (CalOSHA) to complain about repetitive stress injury allegedly occurring at his workplace. He complained that the hospital used temporary contract employees who did not possess the skills and abilities to meet the physical and mental demands of their pharmacy assignment. CalOSHA declined to investigate the complaint.

C. Exacerbated Injury

In March and April 2001, Hessong experienced a new aspect of the condition affecting his hand. From August to October 2001, he took a leave of absence related to the aggravation of symptoms in his hand. In January 2002, he submitted a request for temporary part-time work, which was granted. Hessong worked 24 hours a week from January 2, 2002, until he went out on leave completely in April 2002. On April 12, 2002, he submitted a note from his physician placing him on medical leave from that date until May 10, 2002. He sought and received an extension of that leave to June 30, 2002. On May 13, 2002, Hessong filed a workers compensation claim for a cumulative injury to his hand. The claim was placed on delay pending further medical information. In the meantime, he submitted another note recommending that he remain on leave until his condition could be surgically corrected. Hessong did not undergo the surgery. Except for one day in September 2004, Hessong has not worked since then.

D. Accommodation Process

In June 2002, the citystandardized its procedure for handling requests for accommodation under the ADA and FEHA. Under that procedure, on receiving a request for accommodation in any formincluding notice of restrictions after an industrial injurythe departments ADA coordinator gathers necessary information about the requested accommodation and the medical need for it from the requesting employee. To assist in the information-gathering process, the city uses a form for the employee specifying what accommodation is sought ( Employee Request for Reasonable Accommodation  form). It also uses a form for the employees health care provider, seeking certification that the employees condition fits the definition of a disability, asking for a medical opinion about what accommodations might be necessary, breaking down the essential functions of the employees job and asking whether the employee can perform each, with or without an accommodation. ( Health Care Provider Certification Form and Essential Functions Guide  form).

In conjunction with the employee and the relevant managers, the city ADA coordinator then conducts an analysis of whether an accommodation can be made that enables the employee to perform the essential functions of his or her existing job. If no such accommodation can be made, the coordinator will inquire whether a reassignment can be made within the employees current job classification. If no such reassignment is possibleor is subject to a bid procedure under the applicable collective bargaining agreementthe employee is referred to the citys Department of Human Resources for a 60-day search for another position for which the employee meets the minimum qualifications. If such a position is found within 60 days, the employee is offered that position.

If an accommodated employee indicates that his or her accommodation is not working, or that there have been changes either to the job or to the employees medical condition, the city ADA coordinator will reinitialize the interactive process to identify an effective accommodation. Depending on the nature of the accommodation and how much time has elapsed since the initial accommodation, the coordinator often requests updated medical information, and will always do so if the employee indicates that a change to his or her medical condition necessitates a change in the accommodation. The laws protecting employee privacy dictate that ADA coordinators have access only to limited information from an injured employees workers compensation file. That information is often insufficient to determine what, if any, effective accommodation can be made for a particular employee. For example, a notice of restrictions from a workers compensation doctor will not normally address whether assistive devices or other changes to the work environment will allow the employee to perform the essential functions of his or her job. It is the practice of the citys ADA coordinatorFrancis Chatillonto explain that distinction to employees at the outset of the interactive process when he asks them for the additional information that he needs.

On June 24, 2002, having learned that Hessong was off work with an industrial injury, Chatillon sent a letter inviting him to participate in the interactive process. In that letter, Chatillon explained the purpose of the disability laws and gave an overview of the citys reasonable accommodation process. The next day, Hessong telephoned Chatillon and told him that he would not speak with him unless Chatillon first received permission from Hessongs workers compensation attorney. Chatillon contacted the attorney and was advised that he had no objections to Hessong meeting with Chatillon to discuss a reasonable accommodation. On July 3, 2002, Chatillon sent Hessong a letter informing him of that fact and asking him to call. Hessong did not respond.

On September 24, 2002, Chatillon again attempted to contact Hessong regarding his rights under the ADA and FEHA. Hessong responded by an October 7, 2002 letter, stating that he was not sure if I possess a qualifying disability to partake in the ADA program. He also noted that as of October 2, 2002, his physician had not released him to return to work. In response to his request, Chatillon contacted Kim Tavaglione, Hessongs union representative.

On October 18, Chatillon sent Hessong information and forms regarding requests for a reasonable accommodation, and invited Hessong to contact him with any questions. Those documents included a Request for Reasonable Accommodation form asking specific questions about the type of accommodation sought, the job duties with which he needed assistance, and the major life activities that were affected by his medical condition. The packet contained a medical authorization and release permitting the department to obtain information necessary for the evaluation of his request. The packet also contained a copy of the form that is to be completed by the employees health care provider. Hessong did not respond to that letter, and did not complete a request for accommodation form at any time.

Despite Hessongs lack of response, Chatillon attempted once again, in December 2002, to interact with Hessong regarding a reasonable accommodation. Chatillon asked Hessong to respond by January 23, 2003, or his accommodation file would be closed. According to Hessongs recollection, he responded to this letter by stating that he wanted to engage in the interactive process, but that he needed time to look through everything. Chatillon heard nothing further from Hessong until April 2003, when he contacted Tavaglione to set up a meeting. At that April 29, 2003 meeting, Chatillon gave Hessong another copy of the reasonable accommodation paperwork and asked him to return it. Chatillon followed up the meeting with a letter to Hessong stating clearly that he needed Hessong to return the paperwork to begin the ADA process and asking that he do so within 30 days. Hessong did not comply with this request.

On May 8, 2003, Hessong filed a complaint with the Equal Employment Opportunity Commission (EEOC) and the DFEH. He alleged that he had been discriminated against on the basis of his disability and had suffered retaliation for engaging in protected activity. On May 14, 2003, Hessong received a right to sue notice from the DFEH, which conducted no investigation into the matter but referred it to the EEOC for processing. The city responded to the EEOC/DFEH complaint in June 2003, denying discrimination or retaliation.

In the meantime, Chatillon sent Hessong yet another reminder letter on May 28, 2003, informing him that his accommodation file would be closed if Hessong did not respond by June 12. Hessong responded in writing on June 10, stating that he wished to pursue the accommodation process, but that it was uncertain if and what work restrictions have or have not been imposed on me, and when I was or am able to return to work. He asked Chatillon to bear with him until these issues were resolved. If Chatillon decided to close his file and ask him to restart the ADA process once again, Hessong asked Chatillon to let him know. Chatillon acknowledged this letter on July 3 and urged Hessong to contact him to restart the process at any time.

Hessong acknowledged receiving the reasonable accommodation packet from Chatillon three times. He found the requests that he complete the forms irritating and did not believe that they were necessary. He nonetheless submitted the forms to his doctor but did not get them back. He did not follow up with his physician about these forms. Hessong was also reluctant to engage in the interactive process because he feared that it was a way for the city to get rid of him. His physician finally completed a medical certification form on or about May 27, 2004. The certification indicated that Hessong did not have a medical condition that limited a major life activity. In that certification, the doctor stated that limitations on gripping, lifting, keyboarding, and syringe preparation would limit Hessongs pain to a tolerable level. These limitations were different from the restrictions that he submitted in 1996.

E. Hessong Files Lawsuit

In April 2004, Hessong filed a complaint for damages in the trial court, alleging that the city had violated the FEHA. (See Gov. Code,  12900-12996.) He asserted that the city had a duty to reasonably accommodate his disability. By requiring him to complete unnecessary paperwork and refusing to discuss accommodation, he alleged that the city breached its duty to his detriment. Hessong sought $250,000 in compensatory damages, an injunction precluding the city from requiring additional documentation before accommodating his disability, and immediate reinstatement to his position with his previous accommodation. He also sought punitive damages, attorney fees and costs. The city answered the complaint in October 2004, issuing a general denial.

F. Accommodation Process Continues

Hessong did not submit this certification to the department until a meeting in late July 2004 with representatives from the department and the city attorney. At this meeting, Hessong was questioned about the types of work he felt able to do, including whether he would be willing to work a graveyard shift. At his deposition, Hessong recalled indicating that the graveyard shift would be undesirable. He did not remember asking for any changes to his current position. Soon after, the department offered Hessong a vacant position in the pharmacy at Laguna Honda Hospital. He did not ask any questions about the position nor did he express any concerns about it. Instead, he seemed pleasantly surprised that the department had been able to place him so quickly. He accepted the offer and reported to work on September 1, 2004.

On September 1, 2004, Hessong participated in an orientation and then spent part of the day filling prescriptions. That work consisted of putting drugs into containers and placing computer-generated labels on them. He did not do any keyboarding work, syringe filling, or lifting over two pounds. On the next day, Hessong did not report to work. Instead, he returned to his doctor, complaining of an exacerbation of his symptoms. He also telephoned Chatillon and stated that he had experienced excruciating pain during the previous day. On September 4, 2004, Hessong submitted a letter from his doctor with additional job restrictions, including a 15-minute intervals/four times a day limit on tearing, fine motor manipulation (including applying labels), and handwriting. The doctor recommended that Hessong stay off work until September 20, 2004.

In response to Chatillons subsequent attempts to reach him, on September 16, 2004, Hessong asked Chatillon not to contact him directly regarding his accommodation request, instead directing all communication to his attorney. When Hessong returned to work on September 20, he met with Chatillon at Laguna Honda Hospital to discuss the additional medical restrictions. Because Hessong was unable to remove medications from their packaginga task that requires tearing of perforated materialsto apply labels, to prepare syringes, to work with a keyboard or to write by hand except for very limited periods, Chatillon determined that Hessong could no longer perform the essential functions of the pharmacy technician position. When Chatillon informed him of this, Hessong did not ask for any alternative accommodation that he thought would enable him to do his job. When Chatillon asked if there were other alternatives that the department should consider, Hessong stated,  I think this discussion will take place in a forum other than this. 

In keeping with the citys procedures, Chatillon referred Hessong to the citys Department of Human Resources for a 60-day search for other vacant positions for which Hessong might be qualified. On October 7, 2004, Sylvia Castellanos, the coordinator of the search process for disabled employees, met with Hessong to discuss other possible city jobs for which he might qualify. The only position in which Hessong expressed an interest was that of public safety communications dispatcher. The next day, Castellanos sent Hessong a letter confirming what had been discussed at their meeting, explaining the placement process, restating his medical restrictions, and asking him to contact her for further discussion. In that letter, Castellanos indicated that Hessong had not provided sufficient information to determine whether he qualified for a dispatcher job.

On November 14, 2004, Hessong sent Castellanos a letter stating his belief that he did not possess the minimum qualifications for this position and stating that no other listed open positions appeared to coincide with his abilities. Castellanos attempted again to telephone Hessong on November 18, 2004. On November 20, 2004, he replied with a letter stating that he did not wish to have any further face-to-face or telephone communication with Castellanos, and requested that all subsequent communication be in writing. She complied with that request. On November 24, 2004, she sent Hessong a letter, again requesting additional information about his qualifications for the dispatcher position. Hessong did not comply with that request and did not respond to the letter.

On December 8, 2004, Castellanos sent Hessong one last letter reiterating their past communication, noting that he had not responded to her previous letter, and informing him that the 60-day search period had ended. Five days later, Chatillon contacted Hessong to arrange a meeting regarding his options. That meeting took place on January 4, 2005, in Chatillons office. Hessong has not returned to work.

G. Summary Judgment

In April 2005, the city moved for summary judgment, arguing that it did not fail to accommodate Hessong. For his part, Hessong moved for summary adjudication on the issue of whether the city owed him a duty of accommodation of his disability. In May 2005, the city opposed the motion for summary adjudication. In June 2005, Hessong opposed the citys motion for summary judgment. In opposition to summary judgment, Hessong offered evidence of the work that he could perform if reassigned back to San Francisco General Hospital.

On July 14, 2005, the trial court granted the citys motion for summary judgment and ordered Hessongs complaint to be dismissed. Its order included many findings of fact and rejected Hessongs repeated objections to the citys evidence. In its conclusion, the trial court found that at no time during the citys efforts to identify a reasonable accommodation for Hessong did he make any specific request for a change to his job, other than his requests for leave and requests to bring in more competent help, [] . . . to offer civil-service examinations, to bring in full-time, permanent [employees] and avoid the use of the registry altogether. It noted that, in response to a question asking whether he required an accommodation to perform his job, Hessong stated, Yes. Aug. 12 1996 informal conference agreement led to [my return] to work accommodating my restrictions. Also, I have received paperwork for ADA accommodation process on April 29, 2003. The response area to the question To whom did you make your request for reasonable accommodation? was blank.

On July 26, 2005, the trial court filed an amended order granting the citys motion for summary judgment, including the trial courts findings on 11 undisputed facts that were erroneously omitted from the July 14, 2005 order. The complaint was ordered dismissed with prejudice. An amended judgment was filed on January 13, 2006.^[2] Notice of entry of that judgment was given on March 10, 2006.

II. Objections to Evidence

First, Hessong contends that six of his many objections to the citys evidence should have been sustained by the trial court. He asserts that the city failed to provide an adequate or proper foundation for the underlying facts. He makes this claim of error in two sentences, without making any argument or offering any citations to the record, and without even the barest citation of legal authority. The trial court explained its ruling on each of these objections to the citys evidence in some detail in its amended order granting summary judgment.

On appeal, we test the trial courts rulings on the admissibility of evidence for an abuse of its discretion, which we find if the proffered evidence is not relevant to any issue before the trial court. (See City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900-901; see also Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 563-564.) However, it is not our responsibility to search for legal authority in support of an appellants arguments on appeal. As the appellant, Hessong has the duty to present reasoned legal argument and citation of authorities on every point raised in his appeal. If he asserts a point without supporting it in this manner, we may treat it as waived. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  594, pp. 627-629.) A trial court order is presumed to be correct. In order to prevail on appeal, Hessong must affirmatively demonstrate error. (See Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815; see also Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447.) He has not done so. For all these reasons, we deem this aspect of Hessongs appeal to be waived.

III. Accommodation

A. Employee Participation

On the merits, Hessong contends that the city deliberately failed to accommodate him and deliberately violated the law regarding its duty to accommodate him. Specifically, he asserts that the citys requirement that he fill out its ADA forms breached its duty to accommodate him. One ground that the city asserted in support of its motion for summary judgment was the claim that Hessong failed to participate with the city in the interactive process.^[3] The trial court agreed with the citys position. Thus, as we consider this aspect of Hessongs claim that the city failed to accommodate him, we must determine the extent to which he was required to participate in the interactive accommodation process.

Under federal and state law, a disabled employee has a responsibility to inform an employer that an accommodation is needed. (See 29 C.F.R.  1630.9 (Appen.) (1999); see also Spitzer v. Good Guys (2000) 80 Cal.App.4th 1376, 1384-1385 (Spitzer); Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, 165, cert. den., 519 U.S. 1029 (Taylor) [applying federal EEOC and ADA decisions to state FEHA claims].) Then, the appropriate reasonable accommodation is determined by a flexible, interactive process between the employee and the employer. This process embodies a shared responsibility to fashion a reasonable accommodation. (Taylor, at p. 165.) The employees initial request for an accommodation triggers the employers duty to participate in the interactive process of determining one. (Ibid.; Spitzer, at pp. 1384-1385; see Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228-229; but see Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 (Prilliman).)

Once that initial request has been made, the employee has a duty to cooperate with the employers efforts by explaining his or her disability and qualifications. Reasonable accommodation envisions a mutual interactive exchange between employer and employee, with each seeking and sharing information to achieve the best match between the employees capabilities and available positions. (Spitzer, supra, 80 Cal.App.4th at p. 1385; Prilliman, supra, 53 Cal.App.4th at p. 950; see Gov. Code,  12926.1, subd. (e) [affirming importance of interactive process between employer and employee, following EEOC and ADA guidelines].) When there has been a breakdown in the interactive process, the trial court isolates the cause of the breakdown so that employers are held liable only if the employer is responsible for the breakdown. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).)

B. Standard of Review

The trial court granted the city summary judgment. On appeal from an order granting summary judgment, we conduct an independent review of the facts before the trial court. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Lockheed Litigation Cases, supra, 115 Cal.App.4th at p. 563; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.) We review that courts ruling, not its rationale. (City of Burbank v. Burbank-Glendale-Pasadena Airport Authority (1999) 72 Cal.App.4th 366, 373.) In effect, we assume the trial courts role and apply the same standards that govern a trial courts determination of a motion for summary judgment. (Kelly, at p. 470.)

On appeal, our review is limited to the facts contained in the documents presented in the trial court. We accept as true those facts alleged in Hessongs affidavits and exercise our independent judgment about the legal effect of the undisputed facts disclosed by the parties papers. (See Federal Deposit Ins. Corp. v. Superior Court (1997) 54 Cal.App.4th 337, 345.) We consider all evidence set forth in the motion for summary judgment and the opposition to it, except any evidence to which objections have been made and sustained. On each cause of action, we determine whether the cityas the party seeking summary judgmenthas conclusively negated a necessary element of Hessongs case or has demonstrated that under no hypothesis is there a material issue of fact that warrants a trial, such that the city is entitled to summary judgment as a matter of law. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612; see also Code Civ. Proc.,  437c, subd. (c).) With this standard of review in mind, we consider the merits of Hessongs claim that the trial court erred in granting the city summary judgment.

C. Discussion

We find that, despite repeated efforts by the city to identify a reasonable accommodation for Hessong, he failed to make any specific request for such an accommodation. He did not submit the paperwork that the city repeatedly sought from him to initiate the reasonable accommodation interactive process by identifying the specific accommodation that he sought. Although Hessong claims that the citys requirement that he complete this formal request constituted a failure to provide him with a reasonable accommodation, we conclude that he himself failed to initiate the reasonable accommodation process by making this initial request. (See pt. III(A), ante, p. 13.) As he failed to request an accommodation, the city cannot be held liable for failing to provide one. (See Taylor, supra, 93 F.3d at p. 165; Spitzer, supra, 80 Cal.App.4th at p. 1384.)

Even assuming arguendo that the record allowed us to conclude that Hessong made an initial request for an accommodation, we would find that the trial court properly granted summary judgment because he failed to engage with the city in the interactive process. For over a year, the city repeatedly invited Hessong to participate in the interactive process. Hessong repeatedly failed to respond to these invitations, deflected matters to third parties, or offered inadequate or incomplete responses.

When an employee fails to engage in the interactive process in good faith, the employer may be entitled to summary judgment. (See Jensen, supra, 85 Cal.App.4th at p. 263.) The interactive process is mutualboth employer and employee have a duty to communicate directly, exchange essential information and refrain from delaying or obstructing the process. (Id. at p. 261; see Gov. Code,  12926.1, subd. (e); Prilliman, supra, 53 Cal.App.4th at p. 950.) As the employer, the city may prevail on summary judgment if it shows that the interactive process broke down because the employee did not engage in good faith discussions to try to find a reasonable accommodation. (See Jensen, supra, 85 Cal.App.4th at p. 263.) In the case before us, there is no triable issue of material fact about who bore the responsibility for the breakdown on the interactive process. Hessong was responsible for it, not the city. Thus, the city cannot be liable for failing to provide a reasonable accommodation and summary judgment in the citys favor was proper. (See, e.g., Spitzer, supra, 80 Cal.App.4th at p. 1384; Taylor, supra, 93 F.3d at p. 165.)

IV. Retaliation

Hessong also contends that a claim of retaliation was before the trial court, although he acknowledges that he did not plead a separate cause of action for retaliation in his complaint. A defendant moving for summary judgment need only address issues raised by the complaint. If the trial court had denied summary judgment on the basis of unpleaded issues, it would have erred by doing so. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) Hessongs complaint alleged a single cause of action for violation of FEHA. Nothing in that complaint would alert an objective reader that he intended to allege a claim of retaliation. As we are necessarily limited to the claims that Hessong alleged in the underlying complaint, we find that the trial court did not err by granting summary judgment on the cause of action that was pled in that complaint.

V. Issues of Material Fact

Ultimately, Hessong contends that there are multiple triable issues of material fact that preclude summary judgment in this case. We disagree. His disability and retaliation claims are precluded as a matter of law. (See pts. III-IV, ante.) The city is entitled to summary judgment as a matter of law. Thus, any remaining issues of fact are immaterial to the determination of the allegations of the complaint. (See Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Artiglio v. Corning Inc., supra, 18 Cal.4th at p. 612; see also Code Civ. Proc.,  437c, subd. (c).)

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P. J.

_________________________

Sepulveda, J.

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^[1] On March 14, 2006, Hessong filed a timely notice of appeal from the January 13, 2006, amended judgment, which referenced a July 14, 2005, order granting summary judgment. On July 26, 2005, the trial court issued an amended order granting summary judgment. As it appears that, as the result of a clerical error, the January 2006 judgment referred to the July 14, 2005, order granting summary judgment rather than the July 26, 2005, amended order, we construe the January 2006 judgment to incorporate the July 26, 2005, amended order, rather than the now-superseded July 14, 2005 order. (See former Cal. Rules of Court, rule 1(a)(2) [now rule 8.100(a)(2), liberal construction of notice of appeal]; see also 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment,  74, pp. 602-603.)

^[2] See fn. 1, ante, page 1.

^[3] The trial court based its amended order granting summary judgment inter alia on its conclusion that Hessong failed to participate in the interactive process.