Filed 5/16/16 Dushman v. Southern Cal. Gas Co. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BRIAN DUSHMAN,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA GAS 

COMPANY,

Defendant and Respondent.

 B256291

 (Los Angeles County

 Super. Ct. No. BC501790)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph 

R. Kalin, Judge. Affirmed.

Schwartz Law and Jeffrey M. Schwartz for Plaintiff and Appellant.

Zuber Lawler & Del Duca and Jeremy J. Gray for Defendant and Respondent.

____________________
2

INTRODUCTION

Brian Dushman sued Southern California Gas Company (SoCalGas) for disability 

discrimination in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, 

§12940). The trial court granted summary judgment in favor of SoCalGas. Dushman 

contends that the trial court’s ruling was improper because SoCalGas had not negated an 

element of his causes of action, and because triable issues of material fact remain. We 

affirm.

FACTUAL BACKGROUND

On April 26, 2011, Dushman completed an online application for part-time 

employment with SoCalGas and was hired as a part-time meter reader the next month.

1

Meter readers are required to read utility meters in their assigned areas, which entails 

several miles of walking each day. Dushman worked as a meter reader for approximately 

eight months in total.

On February 29, 2012, Dushman approached a meter on his route and observed a 

dog in the area. Upon leaving, he walked backwards to keep his eye on the dog and 

tripped over a decorative rock on the property, breaking his leg. He had surgery on his 

leg and spent several months in a rehabilitation facility until he was discharged in July 

2012. Following his discharge, he continued with his rehabilitation at home and did not 

report to work. As a part-time employee, Dushman did not qualify for any type of leave, 

including leave under the Family and Medical Leave Act (FMLA; 29 U.S.C. § 2601 et 

seq.) or the California Family Rights Act (CFRA; Gov. Code, § 12945.2).

 

1 The online application contained some incorrect information about Dushman’s 

employment history. Because SoCalGas was unaware the information was incorrect 

when it terminated Dushman, it cannot rely on this after-acquired evidence as a complete 

defense to the FEHA claims. (See Salas v. Sierra Chemical Co. (2014) 59 Cal.4th 407, 

431 [stating that after-acquired evidence may limit “the remedies available to plaintiff 

employee”]). We therefore do not consider this evidence in reviewing the propriety of 

granting summary judgment.
3

On August 16, 2012, Jeffery Bellers, a SoCalGas employee, contacted Dushman

after learning that he had been discharged from the rehabilitation facility. Bellers called 

Dushman “to commence the interactive process to determine if [Dushman] could return 

to work and/or whether he required any additional accommodations.” Dushman said his 

doctor had not yet cleared him to return to work. He told Bellers that he had filed a 

workers’ compensation lawsuit and directed him to speak with his attorney. After Bellers 

explained that he was not calling about the lawsuit, Dushman responded that he was not 

able to work and did not have a return date.

On August 23, 2012, Bellers wrote a letter to Dushman following up on their 

conversation. He stated that he had called a week earlier to “discuss . . . options that 

might help [Dushman] return to active work status,” but that Dushman was “unwilling to 

discuss anything with [him] in light of the fact that [Dushman had] a workers’ 

compensation claim.” Bellers noted that Dushman had told him that he could not 

perform the essential functions of his job and did not provide any information about when 

he would be able to return to work. He added: “[B]ecause you refused to discuss your 

current work status, I can only assume you either are not interested or do not qualify for 

any other available positions . . . .” Bellers invited Dushman to call if he was interested 

in discussing his work status and indicated that his failure to respond would be taken as a 

lack of interest.

On August 30, 2012, Dushman’s workers’ compensation attorney informed

Bellers that Dushman could not yet return to work and was scheduled to be reexamined 

by his doctor on October 1. Dushman called Bellers the next day, on August 31, and told 

him that he could never return to work as a meter reader because of the walking 

requirements, and that he had to work close to home in Canoga Park because he still was 

unable to drive. Bellers asked if Dushman had applied for other jobs with defendant. 

Dushman said he had not, but he had taken a typing and clerical test before his injury 

when he considered transferring to a different position within the company. He typed 43 

words per minute on the typing test; and scored outside the top tier on the clerical test 

(which measured performance in grammar, punctuation, and reading). Dushman asked if 
4

there were any jobs available near his home or at the downtown office. Bellers said he 

would see if there were any available part-time jobs within Dushman’s skill set.

2

Over the next several days, Bellers researched whether the company had any 

available jobs for which Dushman was potentially qualified. There were no open 

clerical positions that required a typing speed below 50 words per minute. Bellers did 

learn of a few open cashier jobs, though they were located in Lancaster, Crenshaw, and 

Ontario. A cashier for SoCalGas provides an array of customer service, including

processing payments and resolving billing issues.

On September 14, 2012, Bellers spoke to Dushman about the results of his 

research, including open cashier positions. Dushman expressed concern about working 

in any of these three locations because he was unable to drive long distances. He asked 

for a couple of days to make his decision. Bellers requested an answer by September 17, 

but then extended the date. Over the next few days, Bellers, Dushman, and Dushman’s 

attorney continued to discuss efforts to return Dushman to work. At one point, Dushman

indicated he was interested in taking an available cashier position in Lancaster, but he 

was unable to pursue it because his doctor had not cleared him to work. Dushman was 

finally cleared to work on September 19, 2012.

On September 20, 2012, Bellers called Dushman to notify him that he had located 

cashier positions closer to Dushman’s home. He offered Dushman the opportunity to 

interview for a job in Van Nuys or Glendale. The following day, Dushman interviewed 

with two supervisors, who conducted the interview according to the company’s structured 

guidelines for the cashier position. The interview was conducted about 25 miles from 

Dushman’s home. Dushman was nervous about the drive because it was the longest 

distance he had driven since his injury, and he remained nervous during the interview. 

 

2 Dushman asked for a week or two to decide whether he wished to be reassigned to 

another vacant position in the company, but Bellers told him he would have to decide by 

the following week. Although Bellers could have given Dushman more time, he believed 

he had had given Dushman sufficient time and wanted to move the process forward.
5

When interviewed, Dushman did not disclose that he had been fired from two cashier 

positions.

Dushman scored an 18.75 on the interview, below the minimum required score of 

23 to qualify for a cashier position. Both interviewers concluded that Dushman displayed 

insufficient oral skills to work effectively as a cashier. It appeared to them that Dushman

would be easily frustrated by difficult customers, would not be proactive in seeking to 

resolve customers’ problems, and displayed little ability to exercise good judgment 

without supervision. They advised Dushman that he did not pass the interview and was 

not qualified for a cashier position.

On October 2, 2012, Bellers spoke with Dushman about the interview results and

again confirmed that the injury to Dushman’s leg prevented him from returning to work 

as a part-time meter reader with or without accommodation. He sent a letter to Dushman

that summarized their previous conversations and concluded: “As you are aware, you 

have been off work since March 1, 2012 and do not qualify for FMLA/CFRA protected 

leave. Due to your inability to return to your former Part-time Meter Reader Transitional 

position, since you do not qualify for the Part-time Cashier 1 position, and since you are 

not qualified for any other available position, the Company is no longer able to 

accommodate your absence. Therefore, we have no alternative but to terminate your 

employment, effective Tuesday, October 02, 2012.”3

PROCEDURAL BACKGROUND

In his first amended complaint, Dushman alleges causes of action for: 

(1) disability discrimination in violation of FEHA (Gov. Code, § 12940, subd. (a)); 

 

3 At his deposition, plaintiff claimed that his termination was discriminatory 

because he should have been given the cashier position outright, without an interview, in 

light of his disability. He stated: “I don’t think I should have been given an interview for 

a cashier position. People who have interviews were generally not disabled. I think I 

should be just given a position because of the disability without jumping through hoops 

for an interview to get the position because there was an on-the-job injury.” He also 

noted that Bellers never offered to allow him to reinterview for the cashier position or 

retake the typing test for the clerical position.
6

(2) failure to accommodate in violation of FEHA (id., § 12940, subd. (m)); (3) failure to 

engage in the interactive process under FEHA (id., § 12940, subd. (n)); (4) failure to take 

all reasonable steps necessary to prevent discrimination under FEHA (id., § 12940, 

subd. (k)); and (5) wrongful termination in violation of public policy.

SoCalGas moved for summary judgment. In opposition, Dushman disputed few 

facts. The few facts identified as “disputed” represented disagreements over the 

characterization or legal significance of the evidence. In granting the motion, the trial 

court found that Dushman’s action had no merit based on the undisputed facts. Applying 

the burden-shifting analysis in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792

[93 S.Ct. 1817, 36 L.Ed.2d 668], the court concluded that Dushman could not show 

discrimination. The court further concluded that Dushman could not establish his other 

claims. SoCalGas reasonably attempted to accommodate him during a good-faith 

interactive process, but he was not qualified to perform the essential functions of his old 

job or an available new job with or without reasonable accommodation.

DISCUSSION

In moving for summary judgment, a defendant must show that the plaintiff cannot 

establish the elements of its claims or that there is a complete defense to those claims. 

(Code Civ. Proc., § 437c, subd. (p)(2).) A “motion for summary judgment shall be 

granted 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. . . .” (Id.,

§ 437c, subd. (c).) On appeal, we review the record de novo to determine whether 

summary judgment was properly granted. (Biancalana v. T.D. Service Co. (2013) 56 

Cal.4th 807, 813.) Based on our independent review, we agree with the trial court’s 

conclusion that SoCalGas was entitled to summary judgment.

A. THE DISCRIMINATION CLAIM

For a disability discrimination claim, the plaintiff must make a prima facie 

showing that he was able to perform the essential duties of the job with or without 

reasonable accommodation, and yet his employer took an adverse employment action

against him because of his disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 
7

143, 159.) If the plaintiff satisfies the showing, the burden shifts to the employer to

provide a legitimate, nondiscriminatory explanation for its action. If the employer is able 

to do so, the burden shifts back to the plaintiff to establish intentional discrimination, 

which may be satisfied by showing that the employer’s explanation is false (creating an 

inference of pretext). (Id. at pp. 159-160.)

On summary judgment, the burden-shifting scheme is modified to conform to the 

nature of the proceedings. The defendant bears the initial burden of either negating an 

element of the plaintiff’s prima facie case or establishing a legitimate, nondiscriminatory 

reason for the employment decision. (Wills v. Superior Court, supra, 195 Cal.App.4th at

p. 160.) Once the defendant satisfies either showing, the plaintiff “‘must offer substantial 

evidence that the employer’s stated nondiscriminatory reason for the adverse action was 

untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a 

combination of the two, such that a reasonable trier of fact could conclude the employer 

engaged in intentional discrimination.’ [Citation.]” (Ibid.; accord, Batarse v. Service 

Employees Internat. Union, Local 1000 (2012) 209 Cal.App.4th 820, 836-837.)

4

Dushman does not dispute that he was unable to return to work as a part-time 

meter reader after his accident. He admitted that he advised SoCalGas “that the injury to 

his leg prevented him from ever returning to work as a meter reader because he could not 

walk the required distances.” This admission defeats his claim for disability 

discrimination under Government Code section 12940 (section 12940), subdivision (a), 

 

4 Dushman complains that the trial court’s order granting summary judgment

neglected to spell out the parties’ burdens or specify how defendant met its initial burden 

of negating an element of plaintiff’s prima facie case or establishing a legitimate, 

nondiscriminatory reason for terminating him. The trial court’s analysis, however, 

applied the correct legal standard. The court concluded that SoCalGas had negated an 

element of Dushman’s prima facie case—i.e., that he could perform the essential duties 

of the job with or without reasonable accommodation. It also found that defendant had a 

legitimate, nondiscriminatory reason for terminating Dushman, which was not shown to 

be pretextual. In any event, we review the trial court’s order de novo and determine 

whether SoCalGas was entitled to summary judgment under the correct legal standard.
8

because Dushman conceded that he was unable to perform an essential function of his job

as a meter reader with or without reasonable accommodation. (Jensen v. Wells Fargo 

Bank (2000) 85 Cal.App.4th 245, 256 (Jensen).) Dushman nevertheless contends that

SoCalGas “failed to affirmatively negate [his] assertion that he would have qualified for 

one of [the clerical or cashier] position[s] with a reasonable accommodation or would 

have qualified for another vacant position, had he been allowed to remain on disability 

leave.” This contention, however, is relevant to his failure to accommodate claim under 

section 12940, subdivision (m), not to his discrimination claim under section 12940, 

subdivision (a). For a discrimination claim, Dushman must prove that he was able to 

perform the essential functions of the position for which he had been hired. (Jensen, 

supra, at p. 256; accord, Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 

744-745 (Furtado).) He admittedly could not do so with or without reasonable 

accommodation.

B. THE FAILURE TO ACCOMMODATE CLAIM

Dushman next claims that a jury should decide whether SoCalGas is liable for 

failing to accommodate his physical disability. However, he did not raise any genuine 

issue of material fact in the trial court, and his arguments on appeal seek to impose 

obligations on SoCalGas that do not exist under the law.

1. No Genuine Issue of Material Fact

To establish a claim for failure to accommodate, a plaintiff must show that “(1) the 

plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and 

(3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]” 

(Furtado, supra, 212 Cal.App.4th at p. 744.) An important distinction between this claim 

and a discrimination claim is that “‘the plaintiff proves he or she is a qualified individual 

by establishing that he or she can perform the essential functions of the position to which 

reassignment is sought, rather than the essential functions of the existing position. 

[Citations.]’” (Id. at pp. 744-745.)

“‘[R]easonable accommodation’” under FEHA “means ‘a modification or 

adjustment to the workplace that enables the employee to perform the essential functions 
9

of the job held or desired.’ [Citation.] ‘“Reasonable accommodation” may include either 

of the following: [¶] (1) Making existing facilities used by employees readily accessible 

to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or 

modified work schedules, reassignment to a vacant position, acquisition or modification 

of equipment or devices, adjustment or modifications of examinations, training materials 

or policies, the provision of qualified readers or interpreters, and other similar 

accommodations for individuals with disabilities.’ ([Gov. Code,] § 12926, subd. (o); see

Cal. Code Regs., tit. 2, § 7293.9, subd. (a) . . . .)” (Furtado, supra, 212 Cal.App.4th at 

p. 745, italics omitted.)

When an employee is unable to return to his or her existing job, the employer has 

an affirmative duty to determine if it has another available position for which the 

employee is qualified. (Furtado, supra, 212 Cal.App.4th at p. 745.) However, “‘“[t]he 

responsibility to reassign a disabled employee . . . does ‘not require creating a new job, 

moving another employee, promoting the disabled employee or violating another 

employee’s rights . . . .’” [Citations.] “What is required is the ‘duty to reassign a 

disabled employee if an already funded, vacant position at the same level exists.’ 

[Citations.]” [Citations.]’ [Citations.]” (Id. at p. 745; see Gov. Code, § 12926, 

subd. (o).)

Here, the undisputed evidence showed that SoCalGas reasonably tried to 

accommodate Dushman’s physical disability, but that he was not able to perform the 

essential functions of the only vacant position at the same level for which he was 

potentially qualified (i.e., a cashier position). SoCalGas granted Dushman a lengthy 

leave of absence, even though it was not required to do so under FMLA or CFRA.

(Jensen, supra, 85 Cal.App.4th at p. 263 [“Holding a job open for a disabled employee 

who needs time to recuperate or heal is in itself a form of reasonable accommodation”].) 

SoCalGas then sought to reassign him when it learned that he could not return as a parttime meter reader. Bellers located two cashier positions that satisfied Dushman’s 

requirement that he work close to home, and he elected to interview for one of them. His 

performance at the interview, as measured through a structured process by two 
10

independent evaluators, demonstrated that he was not qualified to do the job. Therefore,

SoCalGas reasonably accommodated Dushman’s disability. (Ibid. [summary judgment 

appropriate when employer has no vacant position for which employee is qualified]; 

accord, Furtado, supra, 212 Cal.App.4th at pp. 744-745.)5

2. Dushman’s Numerous Challenges

Dushman raises numerous arguments in support of his claim that SoCalGas failed 

to accommodate his disability. None has merit.

First, Dushman argues that, under Jensen, supra, 85 Cal.App.4th at page 262, 

SoCalGas gets no accommodation credit for allowing him to interview for the cashier 

position, a right he already had. However, the interview was merely to determine 

whether he was qualified for the position. Locating and placing him in an open position

for which he was qualified would have been the reasonable accommodation. (Ibid.) 

Because Dushman was not qualified, he could not be accommodated.

Second, Dushman claims that SoCalGas was required, as a reasonable 

accommodation, to inform him that he could reinterview for the cashier position. He 

claims that he did not do well in the interview because he was nervous after driving on 

the freeway for the first time since his injury. But he does not cite any evidence that he 

made the interviewers aware of his nervousness or that he disclosed this information to 

Bellers after learning about the interview results. Nor does he point to any evidence that 

he requested to be re-interviewed. In these circumstances, Dushman cannot fault

SoCalGas for failing to address an unknown issue. (See Taylor v. Principal Financial 

Group, Inc. (5th Circ. 1996) 93 F.3d 155, 165 [employer is not responsible for making 

 

5 Dushman is correct that an employer must do more than offer to allow its 

employee to apply for any position for which he is qualified. (Jensen, supra, 85 

Cal.App.4th at p. 262 [allowing an employee to exercise an existing right does not 

constitute reasonable accommodation]. He is also correct that the interactive process is a 

continuous one that extends beyond an employer’s initial attempt if an employee requests 

further reasonable accommodation. (Scotch v. Art Institute of California (2009) 173 

Cal.App.4th 986, 1013). However, SoCalGas satisfied these standards based on the 

undisputed facts discussed above.
11

accommodations for limitations imposed by a disability that are “not open, obvious, and 

apparent to the employer”]; accord, Scotch v. Art Institute of California, supra, 173 

Cal.App.4th at p. 1013 [employee is responsible for disclosing limitations imposed by a 

disability that are not obvious].)

Third, Dushman asserts that SoCalGas breached its obligation to reasonably 

accommodate his disability by failing to provide him with a temporary tutor or coach to 

help him improve his typing or cashiering skills so he could qualify for those positions. 

In support of his assertion, Dushman relies on an unpublished federal case that undercuts 

his position. In Miller v. Santa Clara County Library (9th Cir. 2001) 24 Fed.Appx. 762, 

a young man with Down’s syndrome was terminated from a job training program for 

placement at a library “because he was having trouble staying on task and needed 

constant supervision.” (Id. at p. 763.) The Ninth Circuit rejected his claim under the 

Americans with Disabilities Act (ADA), concluding that he was not a “‘qualified 

individual’”: “The record is clear that he cannot perform without a job coach at his 

elbow and that he does not have the basic, rudimentary knowledge required for library 

work. ‘Reasonable accommodation’ does not encompass within its meaning the use of an 

additional person to help the clearly unqualified who cannot perform on their own.” (Id.

at p. 765.)

Dushman argues that Miller is distinguishable because he needed only “a little 

temporary help” to be able to perform the job. This argument reads too much into Miller

and the legal duty of accommodation. Neither requires an employer to provide a tutor or 

coach so that an employee may become qualified for a job he is unqualified to do for 

reasons other than his disability. (See Raine v. City of Burbank (2006) 135 Cal.App.4th 

1215, 1223 [reassignment required only if employer has an available job that employee is 

qualified to do].) The clerical position required a typing speed that Dushman did not 

achieve;6the cashier position required a level of people and problem-solving skills that 

 

6 More significantly, there was no vacant part-time clerical position (as discussed in

the text below).
12

Dushman did not demonstrate. Dushman has not cited any authority suggesting that 

SoCalGas was obligated to accommodate those non-disability related deficiencies. 

(Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 [claim of error forfeited 

for failing to support argument with legal authority].)

Fourth, Dushman claims that SoCalGas should have allowed him to retake the 

typing test to see if he qualified for a clerical position. Dushman did submit evidence 

that he requested to retake the test, and we agree that he should have been given that 

opportunity as a matter of accommodation if there were an open part-time clerical 

position requiring a typing speed of 50 words per minute. But SoCalGas submitted 

evidence that the only open clerical positions were full-time, and that it would have 

violated SoCalGas’s collective bargaining agreement to promote Dushman to a full-time 

clerical position. Dushman does not dispute this evidence, but argues that SoCalGas 

“failed to proffer any authority that going from a part-time to a full-time job is a

promotion ‘as a matter of law,’” and that “[SoCalGas] failed to provide its claimed 

‘collective bargaining agreement’ or cite its terms.”

SoCalGas did cite authority in its summary judgment motion for its position that it 

did not have to award a full-time job to a part-time employee. According to Hastings v. 

Department of Corrections (2003) 110 Cal.App.4th 963, 972-973, “The obligation to 

reassign a disabled employee who cannot otherwise be accommodated does ‘not require 

creating a new job, moving another employee, promoting the disabled employee, or 

violating another employee’s rights under a collective bargaining agreement.’ [Citation.] 

What is required is the ‘duty to reassign a disabled employee if an already funded, vacant 

position at the same level exists.’ [Citations.]” As Dushman acknowledges, a position is 

not at the same level if it entails greater pay or status. (Id. at p. 973.) A full-time position 

therefore cannot be said to be at “the same level” as a comparable part-time position. 

(See ibid.) Moreover, Bellers testified that reassigning Dushman to a full-time clerical 

position would have constituted a promotion in violation of the company’s collective 

bargaining agreement. Dushman did not offer any evidence to contradict this testimony. 

Instead, he conclusorily asserts that this evidence must be disregarded because SoCalGas 
13

did not produce the agreement itself. Dushman’s unsupported and conclusory assertion is 

not enough to show error.

7

 (Multani v. Witkin & Neal, supra, 215 Cal.App.4th at p. 1457

[“‘[t]o demonstrate error, appellant must present meaningful legal analysis supported by 

citations to authority’”].)

Fifth, Dushman claims that he had the right to remain on disability leave until a 

suitable position became vacant, unless SoCalGas could prove that this would impose an 

undue hardship. In claiming this right, he cites Sanchez v. Swissport, Inc. (2013) 213 

Cal.App.4th 1331. In that case, the plaintiff had taken leave because of a high-risk 

pregnancy requiring bedrest. After she exhausted the maximum, four-month leave under 

the Pregnancy Disability Leave Law (PDLL), she requested additional time off until she 

delivered her child. Her employer denied the request and terminated her, even though 

she would have been able to return to her existing job after giving birth. The question

raised on appeal was “whether an employee who has exhausted all permissible leave 

available under the [PDLL] . . . may nevertheless state a cause of action under” FEHA for 

failure to grant a request for additional leave as a reasonable accommodation. (Id. at 

p. 1334.) The court concluded: “A finite leave of greater than four months may be a 

reasonable accommodation for a known disability under the FEHA.” (Id. at p. 1341.)

Sanchez is readily distinguishable. The plaintiff there was able to return to her 

existing position once she delivered her baby, and she requested additional time as an 

accommodation to enable her to do so. In contrast, Dushman could not return to his job 

as a meter reader and made no request for additional leave. In fact, he admitted that he 

could never return to his position with or without accommodation. Sanchez did not hold 

that an employer in this situation, absent a showing of hardship, must extend leave until a

new position opens up for which the employee may be qualified. SoCalGas already had

 

7 The only authority cited, Jensen, supra, 85 Cal.App.4th at page 267, does not 

address the issue whether an employer must “provide its claimed ‘collective bargaining 

agreement’ or cite its terms.”
14

granted Dushman seven months of leave, and he has not shown that the company was 

required to grant him additional, unrequested time.

C. THE INTERACTIVE PROCESS CLAIM

Dushman contends a triable issue of fact remains as to whether defendant engaged 

in the interactive process in good faith.

Under FEHA, an employer must engage in an interactive process with an 

employee with a disability “to determine effective reasonable accommodations, if any, in 

response to a request for reasonable accommodation by [such] an employee.” (§ 12940, 

subd. (n).) The process is a two-way street, obligating both the employer and employee 

to communicate openly and fairly to identify an accommodation that will allow the 

employee to perform the essential functions of the job. (Jensen, supra, 85 Cal.App.4th 

245.) An employer will be liable under section 12940, subdivision (n), only if it is 

responsible for the breakdown in communication. (Ibid.) “‘[A]n employer cannot 

prevail at the summary judgment stage if there is a genuine dispute as to whether the 

employer engaged in good faith in the interactive process.’ [Citation.]” (Id. at p. 261.)

Here, SoCalGas gave Dushman several months of leave while he was recovering 

from his leg injury. Bellers waited until Dushman was discharged from the rehabilitation 

facility before contacting him about his work status. Dushman appeared reluctant to 

discuss his work status because of his workers’ compensation claim. Once Dushman 

engaged in the process, Bellers learned that Dushman was unable to return to his former 

position. In response, Bellers sought to identify other positions in the company for which 

Dushman might be qualified. Upon learning that Dushman might be qualified to work as 

a cashier, Bellers searched for open cashier positions. When Bellers located open 

positions, Dushman responded that they were too far from his home. Bellers continued to

search, located two cashier positions closer to Dushman’s home, and arranged an 

interview for Dushman at his chosen site. Thus, SoCalGas communicated with Dushman 

and explored possible accommodations that would allow him to perform a job for which 

he was qualified. (Jensen, supra, 85 Cal.App.4th at p. 261.)
15

Dushman claims, however, that he demonstrated that SoCalGas acted in bad faith 

in several ways, none of which individually or collectively raises a genuine issue of 

material fact. First, he claims that SoCalGas “rushed [him] to make decisions” when 

Bellers gave him a deadline to discuss his work status and interest in pursuing other 

available jobs. Dushman has not shown that it was unreasonable for SoCalGas to give 

him four days to state whether he was interested in participating in the interactive 

process.8 Second, Dushman argues that, in this early exchange with Bellers in August 

2012, Bellers had an incorrect perception that Dushman was non-responsive. However, 

Dushman does not show that this “perception” interfered with the interactive process. 

Third, Dushman claims that he was not given enough time to prepare for his interview for 

the cashier position and that he was nervous about driving to the interview because of his 

leg injury. But he presented no evidence that he requested and was denied additional 

time to prepare for the interview or that he disclosed to Bellers that he had difficulty 

getting to the interview site. Fourth, Dushman contends that SoCalGas acted in bad faith 

by not allowing him to retake the typing test. As previously discussed, SoCalGas had no 

obligation to do so and had no open clerical positions at the same level. Fifth, Dushman 

argues that SoCalGas interfered with his relationship with his doctor by making demands 

of him before he was cleared to return to work. The demands, however, were to 

participate in the interactive process after he had been on leave for six months from a 

position to which he admittedly could not return. The demands were not that he start 

working before he was able to do so. And shortly after Dushman engaged in the 

interactive process, his doctor cleared him to work. Dushman does not indicate how this 

interfered with the doctor-patient relationship.

 

8 Dushman also notes that Bellers had the authority to give him “up to a year to 

choose a position to apply for.” But Dushman has not shown that the deadlines imposed 

were unreasonable or insufficient to accommodate his disability.
16

D. THE REMAINING CLAIMS

The two remaining claims—for failure to prevent discrimination (fourth cause of 

action) and wrongful termination in violation of public policy (fifth cause of action)—

depend on the allegations asserted in the first three causes of action. (Scotch v. Art 

Institute of California, supra, 173 Cal.App.4th at p. 1021 [“An actionable claim [for 

failure to prevent discrimination] is dependent on a claim of actual discrimination”]; City 

of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159 [claim for wrongful 

termination in violation of public policy “cannot be broader than the constitutional 

provision or statute on which it depends”].) In view of our resolution of the first three 

causes of action, the two remaining claims likewise fail.

DISPOSITION

The judgment is affirmed. SoCalGas is to recover its costs on appeal.

BLUMENFELD, J.*

We concur:

PERLUSS, P. J.

ZELON, J.

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.