Moss v. City and County of San Francisco

Background

Cecil H. Moss worked as a San Francisco Municipal Transportation Agency (SFMTA) transit operator. In July 2016, a hydraulic-pedal malfunction on a MUNI bus fractured his right ankle. Medical evaluations later identified permanent work restrictions, including limits on lifting, bending, twisting, and repetitive use of his right leg.

In January 2019, the City told Moss he could not perform the usual duties of his transit-operator job and gave him options that included requesting a reasonable accommodation. Moss requested reassignment to another SFMTA or City position. The City considered positions including welder, school crossing guard, parking control officer, and health services worker, and conducted a 60-day citywide job search. After further discussions about Moss’s medical restrictions and possible positions, the SFMTA sent him a notice of medical separation in October 2019.

Moss sued the City on five causes of action: disability discrimination under the California Fair Employment and Housing Act (FEHA), wrongful termination in violation of public policy, failure to prevent discrimination, harassment, and retaliation under FEHA, violation of civil rights under 42 U.S.C. § 1983, and intentional infliction of emotional distress. The City moved for summary judgment, which asks whether the evidence shows there is no genuine dispute about an important fact and the moving party is entitled to win as a matter of law.

Separate Defendant

The court took judicial notice of the San Francisco Charter and concluded that SFMTA could not be sued separately from the City. The court therefore dismissed SFMTA as a separate defendant.

FEHA Disability Claims

The court held that Moss had to show he was qualified for his prior position or for another vacant position at an equivalent level, meaning he could perform the position’s essential duties with or without a reasonable accommodation.

The court found genuine disputes of material fact concerning whether Moss was qualified for the 7390 Welder and 8201 School Crossing Guard positions. Regarding the welder position, Moss presented evidence of past welding experience, and the court concluded that the City had not established on summary judgment that its five-percent salary rule barred the position. The court also found evidence from which a jury could infer that a welder position was vacant.

Regarding the school crossing guard position, the City’s records marked Moss as having “no interest,” but Moss testified that he had not said he was uninterested. The court found evidence that he was qualified, that vacant positions existed, and that the City did not communicate his seniority ranking as it had said it would.

The court also rejected the City’s argument that keeping Moss on disability leave eliminated any duty to search for or reassign him to another position. The court concluded that leave did not necessarily relieve the City of its duty to pursue another reasonable accommodation when an equivalent vacant position existed and Moss had requested reassignment.

The court therefore denied summary judgment on Moss’s failure-to-make-a-reasonable-accommodation claim under California Government Code section 12940(m). Because the accommodation evidence also supported a disability-discrimination claim, the court denied summary judgment on Moss’s disability-discrimination claim under section 12940(a).

The court separately found a genuine dispute about whether the City engaged in the required good-faith interactive process. The court cited the City’s communications about the welding and school crossing guard positions, including the salary explanation and the “no interest” designation, as evidence from which a jury could find that the City caused a breakdown in the process. The court denied summary judgment on the failure-to-engage-in-the-interactive-process claim under section 12940(n).

Other Claims

The court granted summary judgment on Moss’s wrongful-termination-in-violation-of-public-policy claim because Moss conceded that the claim was unavailable against a public entity.

The court granted the City’s motion on the portions of Moss’s FEHA prevention claim based on harassment or retaliation because Moss identified no supporting evidence. The court denied the motion on the portion based on failure to prevent disability discrimination because the underlying disability-discrimination claim survived and factual disputes remained about whether the City took reasonable preventive steps.

The court granted summary judgment on Moss’s 42 U.S.C. § 1983 civil-rights claim. Moss conceded that his complaint alleged only state-law violations and did not identify the federal right allegedly violated. The court also concluded that the claim, as pleaded, duplicated his California-law claims and declined to allow amendment at the summary-judgment stage.

The court granted summary judgment on Moss’s intentional-infliction-of-emotional-distress claim because Moss conceded that the claim was unavailable against a public entity.

Disposition

The court granted in part and denied in part the City’s motion for summary judgment. It granted the motion on the wrongful-termination claim, the FEHA claim insofar as it alleged failure to prevent harassment or retaliation, the section 1983 claim, and the intentional-infliction-of-emotional-distress claim. It denied the motion on the FEHA disability-discrimination claim, including failure to accommodate and failure to engage in the interactive process, and on the FEHA failure-to-prevent-discrimination claim. The court retained supplemental jurisdiction over the remaining state-law claims and scheduled a further case-management conference.