NADAF-RAHROV v. NEIMAN MARCUS GROUP, INC
Trial court erred in granting summary judgment for department store chain on former employee's claim under federal Fair Employment and Housing Act Sec. 12940(a) for disability discrimination because a triable issue of fact existed as to plaintiff's ability to work with accommodation where doctor averred that his statement that plaintiff was "unable to perform work of any kind" applied only to duties of current position; plaintiff's testimony about her substantial physical restrictions did not self evidently prevent her from performing any work whatsoever; and plaintiff raised a triable issue of fact about whether vacant desk jobs for which she was otherwise qualified were available. Discovery commissioner did not abuse discretion in refusing plaintiff's request to compel discovery as to every vacant position at every one of employer's stores in nation where no authority supported such a broad order, and plaintiff did not aver that she would be willing to relocate anywhere, but commissioner erred in limiting order to stores in two cities. An employer is liable under Sec. 12940(m) for failing to accommodate an employee only if work environment could have been modified or adjusted in a manner that would have enabled employee to perform job's essential functions, but plaintiff bears burden of proving he or she was able to perform essential functions of job with accommodation, and trial court erred in granting summary judgment to employer because a triable issue about whether employer failed to reasonably accommodate plaintiff by reassigning her to an available vacant position existed where a triable issue of fact existed whether plaintiff was able to perform essential functions of such a position with or without accommodation. Sec. 12940(n) which requires employers to engage in a timely, good faith, interactive process with employee to determine reasonable accommodations imposes liability only if a reasonable accommodation was possible, and employee bears burden of proving accommodation's availability, but trial court erred in granting summary judgment for employer because a reasonable jury could find employer caused breakdown in process by refusing to provide information about available positions that might have assisted plaintiff in preparing a list of work related medical restrictions; unreasonably relied on tentativeness of plaintiff's note just prior to termination stating she might be able to return to work in a new position and unilaterally determined plaintiff's ability to perform work of other positions; and unreasonably decided to terminate plaintiff without advance warning or further discussion. Trial court properly granted summary judgment to employer on retaliation cause of action where employer provided legitimate nondiscriminatory reason for termination, and plaintiff's evidence of hostility toward her did not support an inference of retaliatory intent based on request for accommodation. Trial court erred in granting summary judgment on cause of action for national origin and ethnicity discrimination because plaintiff established a prima facie case where she alleged similarly situated persons who were not members of her protected class did not suffer same adverse employment action, and employer's nondiscriminatory reason for plaintiff's termination did not directly address alleged disparate treatment.
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