Nadaf-Rahrov v. the Neiman Marcus Group, Inc.

Majority - Reardon, J.

Yes, an employee pursuing claims for failure to reasonably accommodate or failure to engage in the interactive process under FEHA bears the burden of proving that a reasonable accommodation enabling them to perform the essential functions of a job was available. The court reversed in part the summary judgment granted to Neiman Marcus. Regarding the disability discrimination claim under FEHA section 12940, subdivision (a), the court reversed summary adjudication. Neiman Marcus terminated Nadaf-Rahrov because of her disability. The central inquiry was whether she could perform the essential functions of an available vacant position with or without accommodation. The trial court abused its discretion in ruling Dr. Klompus's declaration inadmissible, which clarified that his 'unable to work' statements referred only to her fitter position and that he encouraged her to seek other work. This declaration, along with evidence of her physical restrictions not precluding all desk work and the availability of other non-promotional positions at lower pay (like clerical or customer service roles), created a triable issue of fact regarding her ability to perform other jobs at Neiman Marcus. The court emphasized that the employer must demonstrate no triable issue of fact about the employee's ability to perform an available vacant, non-promotional position. For the claim of failure to make reasonable accommodation under FEHA section 12940, subdivision (m), the court also reversed summary adjudication. The court explicitly disagreed with Bagatti v. Department of Rehabilitation, concluding that 'reasonable accommodation' under FEHA, like under the ADA, means a modification or adjustment enabling the employee to perform the essential functions of the job held or desired. Furthermore, applying the reasoning from Green v. State of California regarding section 12940(a), the court held that the employee bears the burden of proving they were able to perform the essential functions of a job with accommodation under section 12940(m). Concerning the claim of failure to engage in a timely, good faith interactive process under FEHA section 12940, subdivision (n), the court reversed summary adjudication. The court adopted the federal ADA rule that an employer can be liable for failing to engage in the interactive process only if a reasonable accommodation was possible, and the employee bears the burden of proving that such an accommodation was available. This aligns with the legislative intent, which links FEHA's interactive process requirement to the EEOC's articulation. The court found a triable issue of fact as to whether Neiman Marcus caused a breakdown in the interactive process by refusing to provide information about available positions and unreasonably demanding a specific medical release without disclosing job duties. The court also held that Nadaf-Rahrov raised a triable issue of fact about whether the discovery commissioner erred in limiting the geographic scope of discovery for vacant positions. Summary judgment on the retaliation claim was affirmed for Neiman Marcus and Butler. Butler, as an individual, is not personally liable for retaliation under Jones v. The Lodge at Torrey Pines Partnership. For Neiman Marcus, Nadaf-Rahrov failed to rebut the legitimate, non-retaliatory reason for termination (inability to work, exhausted leave) with evidence of pretext or retaliatory motive beyond mere temporal proximity or vague 'hostility.' Finally, summary judgment on the national origin and ethnicity discrimination claim was reversed. Nadaf-Rahrov established a prima facie case with evidence of two non-Middle Eastern disabled employees who were accommodated by reassignment. Neiman Marcus failed to directly address this disparate treatment. Additionally, sworn declarations from other former Middle Eastern employees describing discriminatory treatment provided sufficient (albeit tenuous) indirect evidence to defeat summary judgment on this claim.