Scotch v. Art Institute of California-Orange County, Inc.
22 Am. Disabilities Cas. (BNA) 331, 173 Cal. App. 4th 986, 93 Cal. Rptr. 3d 338 (2009)
Rule of Law:
To recover for an employer’s failure to engage in the interactive process under the California Fair Employment and Housing Act (FEHA), an employee must identify a reasonable accommodation that was objectively available at the time the interactive process should have occurred. An employer’s legitimate, nondiscriminatory reasons for an adverse employment action, such as accreditation requirements and declining enrollment, will defeat a disability discrimination claim if the employee cannot demonstrate that these reasons are a pretext or establish a causal link between the disability and the adverse action.
Facts:
- The Art Institute of California—Orange County, Inc. (AIC) is a design, media, and culinary arts school subject to the Accrediting Council for Independent Colleges and Schools (ACICS) accreditation standards.
- Full-time faculty at AIC teach at least five course sections per term and receive benefits, while part-time faculty teach four or fewer.
- Carmine Scotch began employment at AIC in 2003 as an instructor, and by 2004, he taught five course sections per term.
- ACICS accreditation standards require all faculty members teaching upper division courses to hold a graduate degree, professional degree, or a bachelor’s degree plus professional certification, with limited exceptions.
- In 2004, AIC began preparing for an ACICS accreditation visit, identifying faculty without advanced degrees and offering tuition for master's programs.
- In November 2005, Scotch informed his supervisor, Lawrence Richman, that he had “personal health issues” limiting his schedule and making it difficult to handle a full-time job, outside projects, and multiple course loads.
- On March 15, 2006, Richman gave Scotch a performance review (PPAR) score of 2.25 out of 5, a decline from 2005, partly due to lack of participation in faculty committees, professional development, and failure to enroll in a master’s degree program.
- During the March 15 meeting, Scotch told Richman he had a “long-term illness” affecting his job performance and ability to pursue a master’s degree, after which Richman took him to AIC’s human resources director, Jane Marchman.
- Scotch privately disclosed to Marchman that he was HIV positive, asked her to keep this confidential, and expressed concern over pursuing a master’s degree, performing faculty development, continuing his consulting business, and teaching full time.
- Marchman informed Melinda Lester (acting dean of academic affairs) and Richman that Scotch had a health condition, but did not disclose his HIV-positive status.
- On March 23, 2006, Scotch met with Lester, discussing his “long-term illness,” PPAR score, and the master’s degree requirement, and Lester suggested he enroll in a three-year rather than a two-year master’s degree program, with the time spent counting as professional development.
- In early 2006, AIC experienced a decline in enrollment, leading to the cancellation of many summer courses and the restructuring of schedules, resulting in some faculty members being terminated and others, including Scotch, having their status changed from full-time to part-time.
- On May 5, 2006, Richman and Lester informed Scotch that he would be assigned only three course sections for the summer term, changing his status to part-time, citing lower enrollment, the master’s degree requirement for upper division courses, and his PPAR score; Richman later assigned Scotch a fourth course.
- On June 16, 2006, Scotch met with Marchman, asked about maintaining his medical benefits and if his change in status was due to being HIV positive, which Marchman denied, stating it was due to ACICS accreditation requirements.
- On July 3, 2006, Scotch informed Richman in a letter that he would not return to his position at AIC, stating that the reduction to part-time status severely impacted his health benefits and income, leaving him “no other choice but to leave.”
Procedural Posture:
- Carmine Scotch filed a first amended complaint (the operative pleading) against The Art Institute of California—Orange County, Inc. (AIC), Lawrence Richman, Melinda Lester, and Jane Marchman.
- The complaint alleged seven causes of action, including disability discrimination, failure to maintain a discrimination-free environment, failure to engage in the interactive process, failure to accommodate (all in violation of FEHA), wrongful termination of employment in violation of public policy, retaliation in violation of FEHA, and intentional infliction of emotional distress.
- The trial court granted motions for summary judgment filed by AIC, Richman, Lester, and Marchman, and judgment was entered in their favor.
- Scotch filed a notice of appeal.
- Scotch later entered into a stipulation with Marchman to abandon his appeal against her.
- The Court of Appeal granted Scotch’s request to dismiss the appeal against Lester and Richman.
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Issue:
1. Does an employer discriminate based on disability in violation of FEHA by reducing an employee's status to part-time due to accreditation requirements and declining enrollment, when the employee fails to show pretext or that decision-makers knew of their specific disability? 2. Did the employer fail to make a reasonable accommodation under FEHA by not guaranteeing an employee full-time status through priority in course assignments? 3. Is an employee required to identify a reasonable and available accommodation, even through the litigation process, to recover for an employer's failure to engage in the interactive process under FEHA? 4. Did the employer retaliate against an employee in violation of FEHA for raising concerns about discrimination and a long-term illness? 5. Did the employer fail to maintain an environment free from discrimination under FEHA when all underlying discrimination claims fail? 6. Was the employee constructively discharged in violation of public policy due to a demotion to part-time status and corresponding loss of benefits?
Opinions:
Majority - Fybel, J.
1. No, summary judgment was proper on Scotch’s claim for disability discrimination because he failed to present evidence that AIC’s stated nondiscriminatory reasons for reducing his employment status (ACICS accreditation standards requiring master’s degrees for upper division courses, declining enrollment leading to fewer course sections, and his PPAR score) were false or pretextual. The court noted that the decision-makers, Richman and Lester, were not aware of Scotch’s HIV-positive status when the adverse employment decision was made, as Marchman had kept the information confidential. Therefore, Scotch could not establish a causal link between his disability and the employment action. 2. No, AIC did not fail to make a reasonable accommodation. AIC offered Scotch the accommodation of enrolling in a three-year master’s degree program, with the time spent on the degree replacing professional development requirements, which the court deemed a 'modification or adjustment to the workplace' enabling him to perform essential job functions. Scotch’s proposed accommodation—priority in course assignments to guarantee full-time employment—was not a reasonable accommodation because it amounted to a guarantee of full-time employment, which an employer is not required to provide. His disqualification from teaching upper division courses stemmed from his lack of a master's degree, not his disability. 3. No, an employee cannot recover for an employer’s failure to engage in the interactive process under FEHA unless, after full discovery in litigation, they can identify a specific, available reasonable accommodation that the interactive process should have produced. The court reconciled prior conflicting appellate decisions, holding that while an employer has a duty to engage in the interactive process, the employee must ultimately demonstrate a remedial injury by identifying a viable accommodation. Since Scotch’s only identified accommodation (priority for full-time status) was found unreasonable, he suffered no remedial injury. 4. No, Scotch failed to establish a claim for retaliation. While he made a prima facie case by engaging in protected activity (telling Lester he believed he was a victim of “weird retaliation” and submitting a letter alleging discrimination due to HIV status) and suffering an adverse employment action (reduced course assignments), he did not rebut AIC’s legitimate, non-retaliatory reasons for the reduction with evidence of pretext or retaliatory motive. The proximity of the adverse action to his protected activity, while strong for a prima facie case, was insufficient to overcome AIC's burden. 5. No, Scotch’s claim for failure to maintain an environment free from discrimination necessarily fails. This claim is dependent on an underlying claim of actual discrimination or harassment occurring and not being prevented. Since the court affirmed summary judgment on all other FEHA causes of action (disability discrimination, reasonable accommodation, interactive process, and retaliation), this derivative claim also fails. 6. No, Scotch was not constructively discharged in violation of public policy. The court applied the `Turner` standard, which requires working conditions to be so intolerable or aggravated that a reasonable person would be compelled to resign. A poor performance rating, demotion to part-time status, and reduction in pay do not, as a matter of law, constitute constructive discharge, especially given Scotch’s appointment letter allowed for changes in employment status due to enrollment declines.
Analysis:
This case significantly clarifies the employee’s burden in a failure to engage in the interactive process claim under California’s FEHA by requiring the employee to identify a reasonable, available accommodation through the litigation process. By reconciling `Wysinger`, `Nadaf-Rahrov`, and `Claudio`, the decision emphasizes that while employers must engage in good faith, plaintiffs must ultimately prove a tangible injury by identifying a viable accommodation that should have been discovered. This ruling places a clear evidentiary burden on the plaintiff at the summary judgment stage, making it more challenging to prevail on interactive process claims without concrete evidence of a missed accommodation. It reinforces the employer's defense of legitimate, nondiscriminatory reasons when not directly linked to a known disability.
