Flores v. Mobil Corp.1/31/2002
and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees. . . ." (Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th at pp. 950-951; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.) Similarly, the United States Supreme Court has stated: "Employers have an affirmative obligation to make a reasonable accommodation for a handicapped employee. Although they are not required to find another job for an employee who is not qualified for the job he or she was doing, they cannot deny an employee alternative employment opportunities reasonably available under the employer's existing policies. [Citations.]" (School Bd. of Nassau County v. Arline (1987) 480 U.S. 273, 289, fn. 19; Bates v. Long Island R. Co. (2nd Cir. 1993) 997 F.2d 1028, 1035.) As the foregoing cases suggest, the reasonable accommodation duty does not require an employer to create permanent light duty work or a new position for a disabled employee. (McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501; Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th at p. 1389; accord, e.g., Hoskins v. Oakland County Sheriff's Dept. (6th Cir. 2000) 227 F.3d 719, 730; Aldrich v. Boeing Co. (10th Cir. 1998) 146 F.3d 1265, 1271, fn. 5.) Section 12926, subdivision (n)(2), is consistent with this rule. It states in part that reasonable accommodation may include "reassignment to a vacant position." (§ 12926, subd. (n)(2), italics added; see Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 260-267; Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 225-226.)
When, as here, it is undisputed plaintiff cannot perform his essential duties, even with reasonable accommodation, an employer moving for summary judgment has the burden of establishing there were no vacant positions the disabled employee could have filled. (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at pp. 264-265; Spitzer v. Good Guys, Inc., supra, 80 Cal.App.4th at pp. 1389-1390; Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 227; Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th at pp. 951-952; see County of Fresno v. Fair Employment & Housing Com. (1991) 226 Cal.App.3d 1541, 1553; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) 10:268.7.) The plaintiff need not show that he or she requested an alternative job; stated differently, it is not a defense that the employee failed to request an alternative position. (Prilliman v. United Air Lines, Inc., supra, 53 Cal.App.4th at pp. 951-952; see Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1385-1386.) Once the employer meets its burden, the plaintiff must present evidence sufficient to raise a triable issue as to the availability of other positions. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229; Code Civ. Proc., § 437c, subd. (o)(2).) Whether the employer has met its duty to reasonably accommodate the disabled employee is ordinarily a question of fact. (Prilliman v. United Air Lines, supra, 53 Cal.App.4th at pp. 953-954; Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 [religious beliefs]; Schmidt v. Safeway, Inc. (D. Or. 1994) 864 F.Supp. 991, 997.) However, when the undisputed facts establish that the employer reasonably accommodated the disabled employee, summary judgment may be granted. (See, e.g., Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at pp. 225-229 & fn. 11.)
C. Application to the Present Case
It is conceded, for purposes of this appeal, that plaintiff had a
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