NADAF-RAHROV v. NEIMAN MARCUS GROUP, INC

Filed 9/10/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiff, Forough Nadaf-Rahrov, appeals from the granting of summary judgment in favor of defendants on her various claims of employment discrimination. We reverse in part.

FACTUAL HISTORY

Forough Nadaf-Rahrov began working as a clothes fitter for The Neiman Marcus Group, Inc. (Neiman Marcus) in Dallas, Texas in April 1985. In the mid-1990s, she transferred to a fitter position in the San Francisco store. Between 1997 and 2003, Nadaf-Rahrov had recurrent problems with back and joint pain. Dr. Joel M. Klompus, her treating physician, informed Neiman Marcus that Nadaf-Rahrov needed various accommodations, including time off work and a shortened work week, which Neiman Marcus provided. In December 2002, Dr. Klompus informed Neiman Marcus that Nadaf-Rahrov had carpal tunnel syndrome in both hands and osteoarthritis in her fingers.

On November 7, 2003, Nadaf-Rahrov requested family medical leave for about one month. Dr. Klompus signed a Certification of Health Care Provider, which described her condition as pain in multiple joints, including the back, ankles, shoulders, and fingers. He wrote that the condition commenced in about July 2003 and the probable duration of the disability was until January 10, 2004. In response to the question [I]s the employee unable to perform work of any kind? Dr. Klompus responded yes. When asked to list the essential functions of the job that Nadaf-Rahrov was unable to perform, he wrote all. Neiman Marcus granted Nadaf-Rahrov family medical leave until December 10, 2003.[1]

Dr. Klompus extended Nadaf-Rahrovs leave in December 2003, in January 2004, and in February 2004. His medical notes stated that Nadaf-Rahrov was unable to work or unable to return to work and the extensions lasted through March 5, 2004.

In a letter dated January 21, 2004, Nadaf-Rahrov informed Neiman-Marcus that she could not return to her fitter job due to her disability, and she asked to be assigned to another position at Neiman Marcus. Dr. Klompus wrote Neiman Marcus a similar letter on January 25, confirming Nadaf-Rahrovs disability and recommending she be reassigned to a position that would not involve bending, standing, or kneeling.

Neiman-Marcuss San Francisco Human Resource Manager Kelly Butler averred that the January 2004 letters from Nadaf-Rahrov and her physician, [P]rompted me to enter into an extended dialogue with Ms. Nadaf-Rahrov regarding her qualifications, restrictions and available positions within [Neiman Marcus]. I had multiple telephone conversations with Ms. Nadaf-Rahrov regarding her restrictions and the fact that, according to her and her doctors notes, she was completely prohibited from performing work of any kind. I repeatedly told Ms. Nadaf-Rahrov . . . that I would be happy to assist her in exploring other opportunities within [Neiman Marcus] as soon as her restrictions were modified to allow her to perform some work in some capacity, as without a release there was no point in discussing available positions because she was not qualified for anything. Ms. Nadaf-Rahrov assured me that she wanted to return to [Neiman Marcus] and that she would inform me if, and when, her doctor modified her restrictions so that we could explore her options. Nadaf-Rahrov acknowledged in her deposition that Butler told her that she should call when she was released to return to work so that Butler could look for other jobs in the store for her, and she acknowledged that she had agreed to do so.

In a letter dated February 16, 2004, Butler wrote to Nadaf-Rahrov, Your FMLA approved leave is exhausted as of February 1, 2004. Your latest doctors note indicates that you are unable to return to work prior to March 5, 2004. We are no longer able to hold your position open. Business needs dictate that we must make some staffing changes. You agreed to contact me when you are released to return to work so that we can assist you in exploring other opportunities within the store. [] . . . With proper medical updates, your sick pay benefits will continue unchanged until you are able to return to work, or your sick benefit hours are exhausted. If your situation changes and you are able to return to work prior to March 5, 2004, please get in touch with me so we can plan for your return.

In a letter dated February 24, 2004, Nadaf-Rahrov acknowledged receipt of Butlers February 16 letter and wrote, According to my physician and specialists through examinations, I need to still be under their care for a little while longer before I can return to work. [] . . . I will be looking forward to contact you as soon as my physician let me know I can release from his care.

Dr. Klompus extended Nadaf-Rahrovs medical leave four more times through August 16, 2004. The March 1, 2004 extension said she is under my care for joint and back problems. She needs to remain on disability for at least [two] months. The May 4, 2004 extension said she is continuing under my medical care. She has a return appointment to see me in 6 weeks and will remain on medication for her condition. The May 10, 2004 extension said she remains under my medical treatment and is unable to work. She may return to work on 6/28/04. The June 28, 2004 extension stated, Forough Nadaf remains unable to return to work as she is having increasing pain. I am extending her disability for an additional 6 weeks. I believe she may be able to return to work on 8/16/04 but not in her previous position.

On July 14, 2004, Neiman Marcus terminated Nadaf-Rahrov, who by that time had exhausted her remaining sick and vacation benefits. Butler averred, At the time, she did not have a release from her doctor to perform work of any kind. Even with a release, I concluded that given her existing (and continuing) restrictions, she was not qualified to fill any open and available position within [Neiman Marcus]. Moreover, Ms. Nadaf-Rahrov utterly failed to provide me with any reason to believe that her condition was likely to change anytime in the near future. In fact, our conversations and correspondence (or the lack thereof) lead [sic] me to believe just the opposite.

Nadaf-Rahrov did not receive any notice that she was going to be terminated. When she received the letter informing her she had been terminated, she was shocked and called Kayko Humphrey, the secretary in the human resources department. Humphrey simply told her the termination was a human resource decision.

PROCEDURAL HISTORY

On January 12, 2005, Nadaf-Rahrov sued Neiman Marcus for employment discrimination based on disability, national origin, and ethnicity in violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA)[2]; for retaliation in violation of the FEHA; and for wrongful termination in violation of public policy.[3] She also sued Butler and Humphrey for retaliation. She later dismissed her claim against Humphrey.

The court granted summary judgment to Neiman Marcus and Butler on March 24, 2006, and entered judgment. The court wrote that Nadaf-Rahrov could not prevail on her claims for disability discrimination, failure to accommodate, and failure to engage in the interactive process because the undisputed facts established that she was not able to perform the essential functions of her fitter position or any other available position at Neiman Marcus. Neiman Marcus reasonably accommodated Nadaf-Rahrov by providing six months of leave beyond the requirements of the Family Medical Leave Act and it was not required to wait indefinitely for her medical condition to improve to the point where she could perform an available job. The court ruled in the defendants favor on the retaliation claim because the termination decision was not unlawful and thus could not be retaliatory and because Nadaf-Rahrov was not a qualified individual with a disability. Moreover, there was no evidence that Butler acted with a retaliatory motive. The court ruled in the defendants favor on the national origin and ethnicity discrimination claim because Nadaf-Rahrov failed to establish a prima facie case and failed to present admissible evidence to dispute the defendants evidence that their conduct was not discriminatory.

DISCUSSION

Summary judgment is appropriate if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).)

We review summary judgment orders de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We do not resolve conflicts in the evidence as if we were sitting as the trier of fact. (Id. at p. 856.) Instead, we draw all reasonable inferences from the evidence in the light most favorable to the party opposing summary judgment. (Id. at p. 843.) All doubts as to the propriety of granting summary judgment are resolved in favor of the opposing party. (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178.)

I.                    Disability Discrimination

Three unlawful employment practices prohibited by the FEHA are relevant to Nadaf-Rahrovs disability discrimination claim. Section 12940, subdivision (a) (section 12940(a)) declares it an unlawful employment practice for an employer because of the . . . physical disability . . . of any person . . . to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment. [] (1) This part does not prohibit an employer from . . . discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . . ( 12940(a), (a)(1).) Section 12940, subdivision (m) (section 12940(m)) declares it an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Finally, section 12940, subdivision (n) (section 12940(n)) declares it an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.

Nadaf-Rahrovs first cause of action for disability discrimination alleges all three of these unlawful employment practices. She expressly alleges violations of section 12940(m), and 12940(n). Although she does not expressly allege a violation of section 12940(a), she alleges that Neiman Marcuss termination of Plaintiffs work assignment as well as its refusal to accommodate her violated section 12940. Subdivision (a) prohibits terminations of qualified employees because of disability.

A.                 Section 12940(a)

Section 12940(a) prohibits employers from discharging an employee because of a physical disability. In order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation (in the parlance of the Americans with Disabilities Act, 42 U.S.C.  12101 et seq., that he or she is a qualified individual with a disability). (Green v. State of California (2007) 42 Cal.4th 254, 257-258 (Green).)

Although Nadaf-Rahrov bears the burden of proving these elements at trial, in the summary judgment context the moving party bears the burden of demonstrating there are no material triable issues of fact and that it is entitled to judgment as a matter of law. A defendant moving for summary judgment can prevail if it shows that one or more elements of the [plaintiffs] cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc.,  437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at p. 845.) [F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, at p. 850.) Neiman Marcus sought summary judgment on the ground that Nadaf-Rahrov could not establish her claims. It bore the initial burden of showing that she could not establish one or more of the elements of her causes of action and the ultimate burden of proving there are no triable issues of fact as to her causes of action.

On the first element of the section 12940(a) claim, Neiman Marcus does not contend that Nadaf-Rahrov cannot establish that she was discharged because of her disability. Butler averred that Nadaf-Rahrov was terminated because she did not have a release from her doctor to perform work of any kind and given her existing (and continuing) restrictions, she was not qualified to fill any open and available position, nor did she provide me with any reason to believe that her condition was likely to change anytime in the near future. In other words, Nadaf-Rahrov was fired because Butler believed her disability prevented her from performing the essential functions of any available position in the company.

Summary adjudication of the section 12940(a) claim, therefore, turns on the second element of the claim: whether Nadaf-Rahrov could perform the essential functions of the relevant job with or without accommodation. Nadaf-Rahrov does not dispute that she was unable to perform the essential functions of her former position as a clothes fitter with or without accommodation. Under federal law, however, when an employee seeks accommodation by being reassigned to a vacant position in the company, the employee satisfies the qualified individual with a disability requirement by showing he or she can perform the essential functions of the vacant position with or without accommodation. (Aka v. Washington Hosp. Center (D.C. Cir. 1998) 156 F.3d 1284, 1300-1301 [in bank] (Aka); Smith v. Midland Brake, Inc. (10th Cir. 1999) 180 F.3d 1154, 1161-1162 (Midland Brake) [in bank; listing cases]; Taylor v. Phoenixville School Dist. (3d Cir. 1999) 184 F.3d 296, 317-318 (Phoenixville); Fjellestad v. Pizza Hut of America, Inc. (8th Cir. 1999) 188 F.3d 944, 950-951 (Fjellestad).) The position must exist and be vacant, and the employer need not promote the disabled employee. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 (Spitzer); Midland Brake, at pp. 1174-1178 [reviewing cases].) We apply the same rule here. To prevail on summary adjudication of the section 12940(a) claim, Neiman Marcus must show there is no triable issue of fact about Nadaf-Rahrovs ability, with or without accommodation, to perform the essential functions of an available vacant position that would not be a promotion.

To establish that Nadaf-Rahrov cannot establish this fact, Neiman Marcus relies on three types of evidence. First, it relies on Dr. Klompuss statement in November 2003 that Nadaf-Rahrov was not able to perform any work and the alleged absence of any notification thereafter that Nadaf-Rahrov could perform some kind of work or would be able to do so in the foreseeable future. Second, it relies on Nadaf-Rahrovs description of her own physical condition, which it argues demonstrates she was unable to perform any work whatsoever and there was no reasonable likelihood she would be able to do so in the foreseeable future. Third, it relies on Butlers professional opinion, based on her familiarity with the job requirements of available vacant positions, that Nadaf-Rahrov could not perform the essential functions of those jobs. Neiman Marcus also cites admissions by Nadaf-Rahrov during her depositions to bolster this third argument. We address each argument in turn.

1.                  Dr. Klompuss Medical Certification

In November 2003, Dr. Klompus completed a Certification of Health Care Provider in support of Nadaf-Rahrovs application for family/medical leave. He wrote that Nadaf-Rahrov suffered from pain in multiple joints, especially her back, ankles, shoulders and fingers, requiring multiple visits and adjustment of therapies. She was presently incapacitated and the duration of her condition would depend on her response to treatment─will know by 1/04. On the form, Dr. Klompus responded yes to all three of the following questions: Will it be necessary for the employee to take work only intermittently or to work on a less than full schedule as a result of the condition (including for treatment)?; If medical leave is required for the employees absence from work because of the employees own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind?; and If unable to perform some work, is the employee unable to perform any one or more of the essential functions of the employees job (the employee or the employer should supply you with information about the essential job functions)? In connection to the last question, Dr. Klompus responded all to the supplemental question, If yes, please list the essential functions the employee is unable to perform.

Neiman Marcus zeroes in on Dr. Klompuss response to the second question, which indicated that Nadaf-Rahrov was unable to perform work of any kind as of November 2003. Butler avers, At no time after November 2003, when I received Plaintiffs Certificate of Health Care Provider that stated that Ms. Nadaf-Rahrov was . . . unable to perform work of any kind . . . was I told anything by anyone to make me think that this restriction had been modified or was no longer in effect.[4] She relied in part on this evidence to opine that Nadaf-Rahrov was unable to perform the essential functions of any open and available position at the time of her termination and that there was no reason to believe that she would be able to do so in the foreseeable future.

Nadaf-Rahrov, however, has raised a triable issue of fact about whether Dr. Klompuss medical certification and notes established that she was unable to perform work of any kind at the time of her termination or in the foreseeable future. Dr. Klompus averred that he intended the Certification of Health Provider to indicate only that Nadaf-Rahrov was unable to perform the essential functions of her job as a fitter. Dr. Klompus further averred that he encouraged Nadaf-Rahrov to seek other work at Neiman Marcus that did not have the strenuous physical requirements of a fitter; that Nadaf-Rahrov wrote her January 21, 2004 letter to Neiman Marcus after consulting with him; that as stated in Nadaf-Rahrovs letter he was willing to discuss other options to accommodate her in order for her to continue working at [Neiman Marcus] in another position; and that he intended his own January 25, 2004 letter to indicate that Nadaf-Rahrov could perform other work at Neiman Marcus. Dr. Klompuss January 25, 2004 letter stated that he would strongly support her change to a position that would not involve bending, standing, or kneeling. Dr. Klompuss subsequent medical notes indicated that Nadaf-Rahrov was to remain on disability, was to continue under medical care, or was unable to work. Dr. Klompus averred that he had always maintained that [Nadaf-Rahrov] was capable of performing other jobs that did not require the strenuous tasks of a fitter and all of my references to her not being able to work referred only to her job as a fitter . . . . He averred that he did not release Nadaf-Rahrov to work because I believed that she could not continue to perform the job of a fitter. Neiman Marcus never offered any other positions for her in order for me to evaluate whether she could be released to those jobs.

In light of Dr. Klompuss averments, the medical certifications and notes in the record do not alone establish as a matter of law that Nadaf-Rahrov was unable to perform work of any kind at the time of her termination or in the foreseeable future. A reasonable factfinder could find that the Certification of Health Provider included overstatements and that the 2004 medical notes indicated she could not work as a fitter but might be able to work in another position if it did not involve more than incidental bending, kneeling, and standing.

The trial court ruled Dr. Klompuss declaration, which contains conclusions, many of which are directly contrary to his statements in the November 2003 Health Care Certification and the subsequent notes he submitted to [Neiman Marcus] in 2004, is largely inadmissible because it lacks an adequate foundation and is speculative. This ruling was an abuse of discretion. (See People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640 [evidentiary rulings are reviewed for abuse of discretion].) Dr. Klompus had a foundation for his opinion because, as Nadaf-Rahrovs treating physician, he was intimately familiar with her physical restrictions. He could reasonably provide a preliminary opinion about her ability to perform certain types of work based on his lay understanding of those common jobs. Moreover, as the author of the Certification of Health Provider and 2004 medical notes, he had direct personal knowledge of what he intended by those writings.

2.                  Nadaf-Rahrovs Testimony Regarding Her Physical Condition

Nadaf-Rahrov testified during her August 2005 deposition that she was still so severely physically disabled that she was unable to perform most ordinary household chores or activities of daily living. She had pain in her knee and low back that went through her spine to her shoulders and her neck on a daily basis. The pain was constant and would increase with physical activity. She had difficulty sleeping because her hands went numb at night and had to get up and move them around. She could not hold the phone for long and had a hard time having even short phone calls. Her husband did most of the cooking, washed the dishes, vacuumed the house, did the laundry, made the beds, and took Nadaf-Rahrov grocery shopping so he could push the cart and move the bags. Walking for five or ten minutes caused Nadaf-Rahrov hip and low back pain. Nadaf-Rahrov had not worked for anyone since November 2003, and she had not even looked for work until July 2005, when she began to feel better after switching to a lower dose of steroids. She was also feeling stronger mentally. However, she still never knew how she would feel in the morning. She felt different every day. The doctors continued to advise her that as long as she felt pain she should not bend, lift, stoop, stand for too long, or use her knees. The trial court concluded that Nadaf-Rahrovs acknowledged and still ongoing physical problems prevented her from taking any open position.

Although these physical restrictions are substantial, they did not self-evidently prevent Nadaf-Rahrov from performing any work whatsoever with or without accommodation. The trial court wrote that it was inconceivable to anyone who has ever eaten in a restaurant that Nadaf-Rahrov could work as a busser or dishwasher given these physical limitations. In other words, no reasonable factfinder could find that she was able to perform those jobs given her physical limitations. We might agree with that conclusion, but we cannot conclude that no reasonable factfinder could find that Nadaf-Rahrov could perform any work with accommodation given her physical limitations. For example, the physical restrictions do not obviously preclude Nadaf-Rahrov from performing desk work with accommodation. As explained below, Nadaf-Rahrov raised a triable issue of fact about whether vacant desk jobs for which she was otherwise qualified were available. Therefore, the fact of her physical restrictions alone does not support summary adjudication of this cause of action.

3.                  Evidence of Nadaf-Rahrovs Ability to Perform Specific Jobs

Butler averred that in her professional opinion, Nadaf-Rahrov was not able to perform any of the following positions that were available between January 2004 and July 14, 2004: bartender, busser, sous chef, building engineer, assistant human resource manager, loss prevention investigator, make-up artist, merchandise coordinator, restaurant coordinator, dishwasher, stock person, visual trimmer, waiter, sales department manager, and executive secretary. Butler described in detail the physical demands of and professional skills required for these positions as they are actually performed at Neiman Marcus, information that was within her personal knowledge as Human Resources Manager of Neiman Marcus. Based on Nadaf-Rahrovs descriptions of her physical condition in conversations with Butler and in her deposition testimony, and based on Dr. Klompuss description of her physical condition in his communications with Neiman Marcus, Butler opined that Nadaf-Rahrov was unable to perform the physical demands of these positions. Based on Nadaf-Rahrovs employment application, which described her employment history, Butler further opined that Nadaf-Rahrov lacked the professional skills required for many of the positions. Neiman Marcus also cites admissions Nadaf-Rahrov made during her deposition that she could not perform the physical tasks of many of these positions (bartender, busser, chef, building engineer, loss prevention officer, dishwasher, stock person, and waiter) as they were described to her by defense counsel. Those descriptions were consistent with Butlers descriptions of duties of these jobs in her declaration.

Nadaf-Rahrov, however, produced evidence that additional jobs were available at Neiman Marcus. Neiman Marcus responded to a discovery demand with a list of jobs available through November 2004 that included the following additional positions: clerical, cook, customer service representative, food preparation, gift wrapper, restaurant hostess, and sales. Jobs available during the extended time period are relevant because it may have been a reasonable accommodation for Neiman Marcus to extend Nadaf-Rahrovs leave of absence for a limited period of time until a position became available that Nadaf-Rahrov could perform, particularly if Neiman Marcus could have anticipated the future opening. (See Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 [limited leave of absence may be reasonable accommodation].)

Nadaf-Rahrov also produced a declaration by Dr. Klompus opining that Nadaf-Rahrov could do several of these jobs because they do not require kneeling and strenuous tasks with her fingers and hands which would affect her arthritic condition in the same manner as being a fitter. Specifically, he opined that Nadaf-Rahrov could work as a customer service representative, or clerical worker. As explained earlier, it is not self-evident from Nadaf-Rahrovs description of her physical restrictions that she could not perform desk jobs with accommodation. It is also not self-evident that she could not be accommodated in a hostess or sales position to avoid any need for prolonged standing. Although Dr. Klompus also opined that Nadaf-Rahrov could work as a busser, food preparer, dishwasher, or waiter─positions Nadaf-Rahrov essentially conceded she could not perform based on defense counsels description of the jobs duties─this conflict in the evidence does not render the rest of Dr. Klompuss declaration inadmissible or purely speculative. There is no indication in Dr. Klompuss declaration that he was provided the same job descriptions when he rendered his opinion. Moreover, an individuals tolerance for pain is subjective and a patient may decide he or she cannot perform work that a doctor opines he or she is technically physically capable of performing.

Nadaf-Rahrov also raised a triable issue of fact about her nonphysical qualifications for these positions. She had some past experience with office work and extensive experience with Neiman Marcus, having worked with the company since 1985. There is no evidence in the record that Neiman Marcus requires specific prior experience or skills for any of these positions.

Butler averred, Of the open and available jobs, the only jobs that I considered even remotely near Ms. Nadaf-Rahrovs previous level of employment were: bartender, busser, dishwasher, waiter and stock person. By previous level of employment, Butler apparently is indirectly referencing the rule that an employer has no obligation to accommodate a disabled employee by reassigning him or her to a vacant position that would amount to a promotion. (Spitzer, supra, 80 Cal.App.4th at p. 1389.) Butler does not explain what criteria she applied to determine which jobs were at or below Nadaf-Rahrovs previous level of employment. Nadaf-Rahrov, on the other hand, produced evidence of the pay rates of the various positions, which indicate that the clerical, customer service representative, and restaurant hostess positions pay below Nadaf-Rahrovs former pay range. The base rate for most of the sales positions were also below her former pay range. Nadaf-Rahrov has raised a triable issue about whether these positions would be promotions.

In sum, we conclude that Nadaf-Rahrov raised a triable issue of fact that she was unlawfully discharged because of her disability because Neiman Marcus could have but did not provide her with a reasonable accommodation (reassignment to a vacant position) that would have allowed her to continue working with the company. We reverse summary adjudication of the section 12940(a) claim.

4.                  Discovery Ruling

Because we reverse summary adjudication of the section 12940(a) claim, we address Nadaf-Rahrovs argument that the discovery commissioner erred in denying her motion to compel Neiman Marcus to provide a list of vacant jobs at all Neiman Marcus stores across the country since November 1, 2001. Neiman Marcus initially agreed to produce documents related only to job openings at the San Francisco store between November 7, 2003, and July 14, 2004. After the parties met and conferred about this discovery dispute, Neiman Marcus agreed to extend the time period of its response to November 7, 2004. Nadaf-Rahrov nevertheless filed a motion to compel a response to its full discovery demand, and a discovery commissioner granted the motion in part. The commissioner extended the time period to November 1, 2005, and included job openings at the Dallas store. Nadaf-Rahrov argues the commissioner erred in not granting even broader discovery.

We review discovery rulings for abuse of discretion. (Fisher v. Superior Court (1986) 177 Cal.App.3d 779, 784.) However, where a discovery motion is denied on the ground of relevancy based on an analysis of the substantive law governing the case, the appeal may raise a pure question of law. (See, e.g., id. at pp. 782, 784 [error to deny discovery where ruling was based on erroneous conclusion that defendant owed no duty to reasonably accommodate plaintiffs medical condition]; Gile v. United Airlines, Inc. (7th Cir. 1996) 95 F.3d 492, 499 (Gile) [error to deny discovery where ruling was based on erroneous conclusion that defendants duty to accommodate plaintiff through reassignment only extended to positions in same department or positions to which she had previously requested a transfer].)

The reasoning behind the discovery commissioners ruling is not in the record. In her moving papers, Nadaf-Rahrov cited federal case law to demonstrate that the discovery she sought was relevant to the lawsuit. These cases tend to demonstrate that an employers duty to accommodate a disabled employee by reassigning him or her to a vacant position is not per se limited to vacant positions in the same workplace where the employee originally worked or to positions to which the employee expressly requested a transfer. (See, e.g., Shapiro v. Township of Lakewood (3d Cir. 2002) 292 F.3d 356, 360 [summary judgment improperly granted to employer on ground employee failed to request transfer to desired vacant position]; Gile, supra, 95 F.3d at p. 499 [discovery improperly limited to positions to which employee had requested a transfer]; Buckingham v. U.S. (9th Cir. 1993) 998 F.2d 735, 737, 740 [in summary judgment proceeding, court erred by concluding that job transfer to another city as accommodation was per se unreasonable].) Neiman Marcus responded to this argument primarily on the ground that it ignores the fact plaintiff was not qualified to perform work of any nature, in any capacity, anywhere. Indeed, Nadaf-Rahrovs alleged inability to work at all was the main ground for Neiman Marcuss opposition to the motion to compel. Neiman Marcus, however, failed to establish her inability to work, and Nadaf-Rahrov sought the discovery precisely to establish there were jobs available within the company that she was able to perform despite her admittedly substantial physical restrictions. Denying the motion on this ground, therefore, would have been an abuse of discretion.

Neiman Marcus also argued that Nadaf-Rahrov failed to produce evidence that transfers among stores were routinely allowed, as she had stated in her moving papers. However, Neiman Marcus submitted evidence that it allowed inter-store transfers. Its argument over how liberal the transfer policy was (i.e., whether transfers were routinely allowed) should have been reserved for litigation of the merits of the action, not raised before the discovery commissioner.

Neiman Marcus also argued the discovery demand was unduly burdensome. However, in response to the demand for a list of vacant positions in the San Francisco store from November 2003 to November 2004, Neiman Marcus provided an 11-page computer printout, which hardly seems onerous even if it took some time to compile.

The critical issue on this motion to compel was the geographic scope of the discovery demand. Neiman Marcus only indirectly raised this issue in its opposition papers and only in the context of arguing it should not be compelled to produce any documents because Nadaf-Rahrov was unable to perform any work. We conclude that the commissioner did not abuse its discretion in refusing to compel discovery as to every vacant position at every Neiman Marcus store in the United States. Nadaf-Rahrov cites no authority that would support such a broad discovery order, nor does she aver that she would be willing to relocate anywhere in the country in order to obtain a new position with Neiman Marcus. On the other hand, limiting the order to the San Francisco and Dallas stores is unsupported by legal authority or by the arguments or evidence that were presented to the commissioner. Therefore, we reverse the order limiting discovery to those two stores as an abuse of discretion and remand the issue for reconsideration.

B.                 Section 12940(m)

Section 12940(m) declares it an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. We must determine whether a plaintiff must be able to perform the essential functions of a job with or without accommodation (i.e., must be a qualified individual with a disability) to prevail under section 12940(m) and, if so, who bears the burden of proving this fact.

1.                  Ability to Perform Essential Functions of Job

Unlike section 12940(a), section 12940(m) does not expressly provide that an employer is not liable for the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations. ( 12940(a)(1).) Similarly, unlike the ADA, section 12940(m) does not expressly limit the requirement to make reasonable accommodations to qualified individual[s] with a disability. (42 U.S.C.  12112(a), (b)(5)(A).)

In Bagatti v. Department of Rehabilitation, the court of appeal relied on these differences in statutory language to conclude that section 12940(m) does not require that reasonable accommodation for disability be made only where the person is a qualified individual able to perform the essential functions of the job . . . . (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360-361, & fn. 4 (Bagatti); but see Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 [holding a plaintiff suing for failure to accommodate under former  12940, subd. (k), predecessor to  12940(m), must establish he or she is a qualified individual able to perform the essential functions of the job]; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235, 239 [construing former  12940, subd. (k) in light of EEOC interpretive guidance, which implies employee must be able to perform essential functions of job to be entitled to accommodation].)[5] We disagree with Bagatti because it fails to fully grapple with the meaning of reasonable accommodation in section 12940(m).[6]

Reasonable accommodation is defined in the FEHA and its implementing regulations only by way of example.[7] ( 12926, subd. (n); Cal. Code Regs., tit. 2,  7293.9(a); see Bagatti, supra, 97 Cal.App.4th at pp. 354-356.) This definition is virtually identical to the ADAs statutory definition of the term, which is also by way of example. (42 U.S.C.  12111(9); see also 29 C.F.R.  1630.2(o)(2).)[8] Where a FEHA provision is modeled on an ADA provision, a federal regulation interpreting the ADA provision may be useful to guide construction of the FEHA provision. (Bagatti, supra, 97 Cal.App.4th at p. 358.)

A federal regulation provides the following relevant descriptive definition of reasonable accommodations: [m]odifications or adjustments to the work environment . . . that enable a qualified individual with a disability to perform the essential functions of that position. (29 C.F.R.  1630.2(o)(1)(ii), italics added.) Moreover, the Equal Employment Opportunity Commissions (EEOCs) interpretive guidance on the ADA makes clear that the duty to identify and provide a reasonable accommodation under the ADA is a duty to identify and provide accommodations that enable the employee to perform the essential functions of the job held or desired. (29 C.F.R. Pt. 1630, App.)[9] The California Legislature has expressly affirmed the importance of the interactive process to identify reasonable accommodations as this requirement has been articulated by the Equal Employment Opportunity Commission in its interpretive guidance of the [ADA]. ( 12926.1, subd. (e).)

Because the California Legislature has modeled the reasonable accommodation requirements of section 12940(m) and section 12940(n) on the parallel federal requirements, the EEOCs definition of reasonable accommodation appropriately guides our construction of the state laws. Indeed, no competing definition of the term has come to our attention in researching this issue. Accordingly, we conclude that reasonable accommodation in the FEHA means (as relevant here) a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.

Bagatti held that the federal regulation defining reasonable accommodation should not guide construction of section 12940(m) because of the differences in the statutory language of section 12940(m) and its federal counterpart. (Bagatti, supra, 97 Cal.App.4th at pp. 360, 362, fn. 5.) The court reasoned that federal authority interpreting the ADA is not persuasive where the statutory language of the FEHA differs markedly from the ADA. (Id. at pp. 361-362.) However, Bagatti overlooks the fact that section 12940(m) uses the same term as the ADA─reasonable accommodation─and the FEHA defines that term by way of example in language virtually identical to that used in the ADA. Neither the FEHA statute nor its regulations provide a descriptive definition of reasonable accommodation or in any way suggests that the term has a different meaning from the federal definition of the term. Indeed, we find it difficult to conceive of what a competing definition of reasonable accommodation would be. Bagatti ducks the question: We recognize that this result will leave employers uncertain with respect to when they must provide reasonable accommodation to disabled employees. . . . Regulatory action to clarify employers duties is plainly appropriate here. [Citation.] We think that this solution─calling upon the agency designated by the Legislature to clarify the FEHA─is a better one than importing into the FEHA provisions from the ADA that the Legislature has not seen fit to put there. (Id. at p. 363.)

We believe the better approach is to provide a reasonable construction of the statute that does not lead to absurd results when considered in the context of the entire statutory scheme. (Santa ClaraValley Transportation Authority v. Public Utilities Com. (2004) 124 Cal.App.4th 346, 360.) An employer is not liable for discharging an employee with a disability unless the employee was able to perform the essential functions of his or her job with or without accommodation. ( 12940(a)(1); Green, supra, 42 Cal.4th at p. 262.) Under Bagattis approach, the employer would nevertheless be liable for failing to accommodate the employee even though he or she could not perform the essential functions of the job with the accommodation. Similarly, an employers duty to engage in an interactive process to identify a reasonable accommodation (as described in the EEOCs interpretive guidance, which has been affirmed by the California Legislature) extends only to accommodations that would enable the employee to perform the essential functions of the position. Under Bagattis approach, however, an employer could be held liable for failing to accommodate an employee even if it engaged in a good faith interactive process and determined no accommodation was possible that would enable the employee to perform the essential functions of the position the employee held or desired.

We disagree, therefore, with Bagattis analysis. (See also Stoll v. The Hartford (S.D.Cal. Nov. 7, 2006, No. 05CV1907) 2006 U.S. Dist. Lexis 81781, *15, fn. 9 [following Bagatti]; Jacques v. Allstate Insurance Company (E.D. Cal. Oct. 18, 2007, No. CV-01994) 2007 U.S. Dist. Lexis 80662, *4, *8-*9 [same].)[10] We conclude an employer is liable under section 12940(m) for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.

2.                  Burden of Proof

The question now arises whether it is the employees burden to prove that a reasonable accommodation could have been made, i.e., that they were qualified for a position in light of the potential accommodation, or the employers burden to prove that no reasonable accommodation was available, i.e., that the employees were not qualified for any position because no reasonable accommodation was available.

Green addressed the issue of who, in an action brought under section 12940(a), bears the burden of proving an employee is able to perform the essential functions of a job with or without reasonable accommodation. (Green, supra, 42 Cal.4th at pp. 257, 262-263.) The court concluded that, because the plain language of section 12940(a) and its subdivision (1) clearly states that an employer is not liable for discharging a person with a disability because of the disability if the person is unable to perform the essential functions of the job with or without reasonable accommodations, the employee bears the burden of proof on the issue: By its terms, section 12940 makes it clear that drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job, at least not with reasonable accommodation. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation. (Id. at p. 262.)

The court also observed that the legislative history of section 12940(a) reflects the Legislatures deliberate effort in 1992 to conform the FEHA to th[e] ADA provision [defining qualified individual with a disability]. . . . It is clear, then, that the Legislature incorporated the ADA requirement with full knowledge of the purpose the language serves in the ADA─as a means of distinguishing permissible employment practices from impermissible disability discrimination based on the employees ability to perform in the particular employment position with reasonable accommodation. (Green, supra, 42 Cal.4th at p. 263, citing 42 U.S.C.  12111(8).) Had the Legislature actually intended to relieve a plaintiff employee of the burden of proving an actionable discrimination on the basis of disability, thereby departing significantly from federal law, we believe it could and would have done so in a more conspicuous manner. (Id. at p. 264.)

Finally, the court noted that placing the burden of proof on the plaintiff was consistent with the general rule in California that a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting. (Evid. Code,   500.) (Green, supra, 42 Cal.4that p. 263.)

Applying Greens burden of proof analysis to section 12940(m), we conclude that the burden of proving ability to perform the essential functions of a job with accommodation should be placed on the plaintiff under this statute as well. First, as just explained, an employees ability to perform the essential functions of a job is a prerequisite to liability under section 12940(m). Second, the Legislature modeled section 12940(m) on the federal reasonable accommodation requirement (adopting almost verbatim the federal statutory definition of reasonable accommodation by way of example). Had the Legislature intended the employer to bear the burden of proving ability to perform the essential functions of the job, contrary to the federal allocation of the burden of proof (see White v. York Intern. Corp. (10th Cir. 1995) 45 F.3d 357, 360-363 (White); Willis v. Conopco, Inc. (11th Cir. 1997) 108 F.3d 282, 284-285 (Willis)),[11] it could have expressly provided for that result, but it did not. Finally, general evidentiary principles support allocating the burden of proof on this issue to the plaintiff. (Evid. Code,   500.)

Other principles governing allocation of the burden of proof also support our conclusion. The reasonable accommodation language in section 12940(m) is integral to the statutory language describing the unlawful employment practice. It is not textually subordinate (e.g., set forth in a subdivision) or otherwise phrased as an exception to the general rule, which might indicate the burden of proof should be allocated to the defendant rather than the plaintiff. (See Green, supra, 42 Cal.4th at p. 269 [dis. opn. of Werdegar, J.].) Nor do policy considerations support shifting the burden of proof to the defendants. [E]xceptions to the general rule . . . are made when it is otherwise impossible for the plaintiff to make its case, and when policy considerations support affording the plaintiff greater protection. (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1673.) The plaintiff is in as good a position as the employer to demonstrate he or she could perform the essential functions of a job with accommodations.

Finally, Raine v. City of Burbank supports our burden of proof analysis. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215 (Raine).) The issue in Raine was whether an employer was required to convert a temporary light-duty assignment (that lasted six years) into a permanent assignment as an accommodation for an employees disability. (Id. at pp. 1217-1218.) The employee argued that the employer had the burden of proving that converting the assignment into a permanent position would pose an undue hardship, which is an affirmative defense under the FEHA. (Id. at pp. 1226-1227;  12940(m) [Nothing in this subdivision . . . shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation. italics added].) The court rejected the argument: The question presented . . . is not whether assigning Raine to the front desk on a permanent basis imposes an undue hardship, but whether the accommodation requested is reasonable and thus required in the first place. (Raine, at p. 1227.) Here too, whether the employee can perform the essential functions of a job with a requested modification is a question of whether the accommodation requested is reasonable and thus required in the first place. The burden of proving this fact lies with the plaintiff.

In sum, we conclude that in order to prevail on a claim under section 12940(m), the plaintiff bears the burden of proving he or she was able to perform the essential functions of the job with accommodation.

3.                  Summary Adjudication Analysis

As we concluded when addressing the section 12940(a) claim, on this record, there is a triable issue of fact about whether Nadaf-Rahrov was able to perform the essential functions of an available vacant position at Neiman Marcus with or without accommodation. Therefore, there is a triable issue about whether Neiman Marcus failed to reasonably accommodate her by reassigning her to such a position.

C.                 Section 12940(n)

Section 12940(n) makes it unlawful [f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. The following questions arise: (a) must a reasonable accommodation have been available before an employer can be held liable for failing to engage in the good faith interactive process or does the simple failure to engage in a good faith interactive process alone give rise to liability, and (b) if a reasonable accommodation must have been available, who bears the burden of proof on that question?

1.                  Availability of Reasonable Accommodation

Federal courts applying the ADA have held that an employer may be held liable for failing to engage in the good faith interactive process only if a reasonable accommodation was available, and that the employee bears the burden of proof on this issue. (White, supra, (10th Cir.) 45 F.3d at p. 363; Willis, supra, (11th Cir.) 108 F.3d at pp. 284-287; McCreary v. Libbey-Owens-Ford Co. (7th Cir. 1997) 132 F.3d 1159, 1165 (McCreary); Aka, supra, (D.C. Cir.) 156 F.3d at p. 1304, fn. 27 [in bank];Midland Brake, supra, (10th Cir.) 180 F.3d at p. 1179 [in bank]; Jackan v. New York State Dept. of Labor (2d Cir. 2000) 205 F.3d 562, 567-568, & fn. 4 (Jackan); see also Phoenixville, supra, (3d Cir.) 184 F.3d at pp. 317-318 [not addressing burden of proof]; Fjellestad, supra, (8th Cir.) 188 F.3d at p. 952 [same]; Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, 1113, 1116 [same] (Barnett), vacated on other grounds sub nom. US Airways, Inc. v. Barnett (2002) 535 U.S. 391.)

The rationale for the federal rule is that imposing liability for failure to engage in the interactive process where no reasonable accommodation was possible would be inconsistent with the remedial goals of the ADA: We also do not believe an approach as punitive in nature as Plaintiffs view of an interactive process requirement comports with the basic goal of the ADA, which we understand to be remedial in nature─ensuring that those with disabilities can fully participate in all aspects of society, including the workplace. See e.g. 42 U.S.C.  12101(a)(8) ([T]he Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals;.) The ADA, as far as we are aware, is not intended to punish employers for behaving callously if, in fact, no accommodation for the employees disability could reasonably have been made. (Willis, supra, 108 F.3d at p. 285.) Willis further explains that, although it would be unfair to require an employee in the workplace to unilaterally identify available accommodations, a plaintiff in litigation can use discovery procedures to do so: Whatever may be said of [plaintiffs] burden as an employee in the day-to-day workplace seeking an accommodation for her condition, Plaintiff─as a litigant bringing an ADA action─has failed to produce evidence (after the completion of discovery) of the existence of any accommodation at all, reasonable or otherwise. (Willis, supra, 108 F.3d at p. 287; see also Jackan, supra, 205 F.3d at p. 568, fn. 4.)

We conclude the California Legislature intended section 12940(n) to be construed in the same manner. First, as noted previously, when the California Legislature enacted section 12940(n) it also enacted section 12926.1, subdivision (e), which expressly affirms the importance of the interactive process as this requirement has been articulated by the Equal Employment Opportunity Commission. We read section 12926.1, subdivision (e) as a strong indicator that the Legislature intended section 12940(n) to be construed consistently with the interactive process requirement under the ADA. (See Raine, supra, 135 Cal.App.4th at p. 1226, fn. 7 [where provisions are similarly worded, federal decisions interpreting ADA are instructive in applying FEHA]; Green, supra, 42 Cal.4th at pp. 262-263 [where Legislature deliberately attempted to conform the FEHA to the ADA, the two acts should be construed similarly].)

Second, the policy rationale set forth in Willis, supra, 108 F.3d at page 285 applies under the FEHA as well because the statute has a remedial purpose similar to that of the ADA: It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of . . . physical disability, mental disability, medical condition, . . . . [] . . .[] . . . [and] to provide effective remedies that will eliminate . . . discriminatory practices. ( 12920.)

Third, section 12940(n) requires employers to engage in the interactive process to determine effective reasonable accommodations, if any. ( 12940(n), italics added.) This phrase could reasonably be construed to mean that an employers failure to engage in the interactive process is an unlawful employment practice (i.e., gives rise to liability) only if a reasonable accommodation existed.

Finally, if the statu