Tyra Montgomery is employed by Los Angeles Unified School District as a special education assistant in an elementary school classroom. She injured her neck, back, and shoulders at work in 2017 while intervening in an incident involving a student exhibiting aggressive behavior.
She filed a workers’ compensation claim and went on medical leave from December 2017 to August 2019. Her doctor then returned her to work with restrictions of (1) no lifting objects over 40 pounds; (2) no standing or walking for longer than one hour without at least ten minutes of sitting; and (3) no repetitive squatting, crouching, crawling, or kneeling.
In September 2019, the school principal received complaints from the drivers of the school bus transporting students with special needs. They informed her that the students were engaging in disruptive and dangerous behavior on the bus, including getting out of their harnesses, crawling around on the floor of the bus, and fighting with one another.
School administrators decided to have an additional person to ride along on the bus, and assigned the role to Ericka Johnson, a special education assistant who supports one of the bus’s students in the classroom.
A few days after Johnson began riding on the bus, Montgomery expressed interest in working the assignment on a bi-weekly rotation with Johnson. LAUSD asked her to provide a clearance from her doctor that is specific to the activities she would be doing on the bus.” Montgomery ultimately did not provide the school administrators with the information requested.
In subsequent conversations with her about her request for this position, she was advised that she would be required to fully lift the students and put them back in their seats if they got up while the bus was in motion. And if she got her forty-pound lifting restriction removed, then she would put on the bus as she requested.
Montgomery sued LAUSD under FEHA, and alleged claims for disability discrimination (first cause of action), failure to accommodate (second cause of action), and failure to engage in the interactive process (third cause of action).
LAUSD moved for summary judgment which was granted by the trial judge. The Court of Appeal affirmed the trial court in the unpublished case of Montgomery v LAUSD -B316697 (May 2023).
Montgomery contended the trial court erred by concluding her disability discrimination claim fails as a matter of law because “there were disputable issues of fact . . . as to whether [she] could perform the essential functions of the [desired] position.”
The evidence provided by LAUSD established that an essential function of a special education assistant working as a bus aide is to lift students as required to meet their various needs. Each of the students on the bus weighed more than forty pounds.
Montgomery, however, cannot lift more than forty pounds, and therefore cannot perform the lifting function necessary to meet student needs. Thus LAUSD has carried its burden of showing Montgomery cannot satisfy the second element of a prima face case for disability discrimination. The burden therefore shifted to Montgomery to show a triable issue of material fact exists. (Code Civ. Proc., § 437c subd. (p)(2).)
Montgomery has not shown there are any triable issues of fact, thus, the trial court correctly determined her first cause of action fails as a matter of law, as LAUSD produced uncontroverted evidence showing she cannot satisfy the second element of a prima facie case for disability discrimination.
The showing required to satisfy the second element of a reasonable accommodation claim is “identical to that required” for the second element of a prima facie case for disability discrimination. Accordingly, as a matter of law, Montgomery’s second cause of action fails for the same reason her first cause of action fails.
To prevail on her third cause of action, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred [or should have occurred].
For purposes of the bus aide assignment, school district employees established that no reasonable accommodation was available for a special education assistant who cannot lift the students on the bus. Based on this evidence, LAUSD has satisfied its burden of showing Montgomery cannot establish an essential element of her interactive process claim. The burden therefore shifted to Montgomery.
In her appellate briefs, however, Montgomery has not cited any evidence in the record showing the existence of a reasonable accommodation that would have allowed her to perform the essential functions of the bus aide assignment with her work restrictions.
LAUSD Prevails in Injured Worker Failure to Accommodate Claim
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