Judge Barbara M. Scheper, Case BS173944 2023-02-09 Tentative Ruling

Judge: Barbara M. Scheper, Case: BS173944, Date: 2023-02-09 Tentative Ruling

Case Number: BS173944 Hearing Date: February 9, 2023 Dept: 30

Dept. 30

Calendar No.

Singh vs. Kirchmeyer, et. al., Case No. BS173944

Tentative Ruling re: Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues

Defendants Medical Board of California and Williams J. Prasifka (collectively, Defendants) move for summary judgment, or, in the alternative, summary adjudication against Plaintiff Tajinder Singh, M.D. (Plaintiff). For the reasons stated in the moving papers, the motion for summary judgment is granted. Plaintiff has not presented any evidence in support of his opposition. Plaintiff has failed to demonstrate a triable issue of fact as to whether he is or was disabled within the meaning of the ADA or FEHA; that the disability interfered with a major life activity; that he timely requested an accommodation or that an accommodation was available that would not fundamentally alter the Board’s licensing requirements.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party can show evidentiary support for a pleading or claim and if not to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc, § 437c, subd. (p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the moving party has met that burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

The Court’s “role on summary judgment is simply to decide whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Soto v. County of Riverside (2008) 162 Cal.App.4th 492, 496.) “The purpose of the summary judgment procedure is not to try the issues, but merely to determine whether there are issues to be tried.” (Orser v. George (1967) 252 Cal.App.2d 660, 668.)

Plaintiff is a physician who became licensed to practice medicine in Florida in July 2018. Since October 2018, Plaintiff has worked as an independent contractor in Modesto, California, relying on his Florida medical license. (UMF 3-4.) Plaintiff attended medical school beginning in September 2011, and while there took the United States Medical Licensing Examination (USMLE) exams. (UMF 8.) The USMLE is produced by the Federation of State Medical Boards and National Board of Medical Examiners. (UMF 9.) Plaintiff passed the Step 1 exam on his second try in 2011, and passed the two Step 2 exams in 2013. (UMF 10-11.)

Plaintiff’s residency program in Modesto, which began on July 1, 2014, required that residents pass the Step 3 exam by the beginning of their third year of residency. (UMF 13.) Plaintiff took and failed the Step 3 four times, on March 25, 2015; October 8, 2015; March 4, 2016; and December 12, 2016. (UMF 18.) Plaintiff was terminated from the residency program on June 30, 2016, for failing to pass the Step 3 by the beginning of his third year. (UMF 19.)

California Business & Professions Code § 2177 requires that an applicant obtain a passing score on Step 3 within four attempts to be eligible for a physician and surgeon certification, with two exceptions for applicants that hold an out-of-state license and meet certain other requirements. (Bus. & Prof. Code § 2177, subd. (c).) Plaintiff was ineligible for licensure due to his four attempts, but nevertheless continued to study for a fifth attempt on the Step 3. (UMF 28.) Unlike his prior attempts, Plaintiff was not working during this period and so devoted much more time and resources to studying compared to prior attempts, including hiring a one-on-one tutor. (UMF 29-30.) During his studying, Plaintiff’s tutor suggested that Plaintiff was performing lower than expected due to nerves. (UMF 32.) Plaintiff made an appointment with Dr. Dang Cong Nguyen, who diagnosed Plaintiff with anxiety on July 6, 2017, about three weeks prior to Plaintiff’s Step 3 Exam on August 1, 2017. (UMF 33.) Dr. Nguyen also prescribed Plaintiff the medication Propranolol for his anxiety, which Plaintiff took for some practice exams and for the August 1, 2017 exam. (UMF 54.) Plaintiff passed the Step 3 on his fifth attempt. (UMF 22.)

On November 10, 2017, Plaintiff sent a letter to Defendant Medical Board of California (the Board), requesting a reasonable accommodation to allow Plaintiff to satisfy the licensure requirement with his fifth attempt on the Step 3. (SAC, Ex. 1.) The letter stated that Plaintiff “suffers from a learning disability and as a result of that disability was unable to pass the USMLE Step 3 until his 5th attempt.” (Ibid.) The letter did not specifically identify Plaintiff’s disability, though provided that, “[u]pon request, we are willing to provide you with additional information regarding [Plaintiff’s] disability including a physician report.” (Ibid.) The Board denied Plaintiff’s request on January 30, 2018, stating that an accommodation “needs to be sought at the time an individual requests to take the examination.” (SAC, Ex. 2.)

Moving Defendants are the Board and Williams J. Prasifka, who became the Executive Director of the Board on June 15, 2020. (UMF 1.) Defendants move for summary judgment on Plaintiff’s second cause of action for violation of FEHA, third cause of action for violation of the Americans with Disabilities Act (ADA), and fourth cause of action for violation of the Rehabilitation Act.

Plaintiff alleges that Defendants violated the anti-discrimination statutes “when they failed to reasonably accommodate Plaintiff’s medical disability by denying his application for medical licensure based on his failure to pass the USMLE Step 3 exam within four tries, even though he had passed on his fifth try when he was finally on medication for his medical disability.” (SAC ¶¶ 43, 51, 59.) Specifically, Plaintiff alleges that Defendants “failed to reasonably accommodate Plaintiff’s medical disability by denying his application for medical licensure based on his failure to pass the USMLE Step 3 exam within four tries, even though he had passed on his fifth try when he was finally on medication for his medical disability.” (SAC ¶ 43.)

Government Code section 12944, subd. (b), makes it unlawful “for a licensing board to fail or refuse to make reasonable accommodation to an individual’s mental or physical disability or medical condition.” “The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the [entity] failed to reasonably accommodate the plaintiff's disability.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009–1010.)

Borrowing from federal administrative guidance on the ADA, California courts have interpreted “reasonable accommodation” under FEHA to mean “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.) FEHA defines a “mental disability” as “any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.” (Gov. Code § 12926, subd. (j).) The ADA definition is similar, though requires that the impairment “substantially” limit a major life activity. (42 U.S.C. § 120102, subd. (a).)

Defendants argue that Plaintiff’s claims fail because he does not have a “learning disability” as described to the Board in his November 10, 2017 letter requesting accommodation. Plaintiff identified his disability to Defendants as performance anxiety for the first time in his complaint in this action. (UMF 44.) The Court agrees that Defendants cannot be held liable for the failure to accommodate a disability that Plaintiff did not identify to Defendants prior to the decision to deny accommodation.

Under FEHA, in the employment context, an employer must be put on notice of the employee’s disability before the duty to accommodate arises: “Section 12940, subdivision (m) requires an employer to accommodate only a ‘known physical ... disability.’ ” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) Similarly, the ADA requires that a plaintiff “prove the employer had knowledge of the employee's disability when the adverse employment decision was made.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236–237.) “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition . . . The employer need only know the underlying facts, not the legal significance of those facts.’” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592.)

“The employee bears the burden of giving an employer notice of his or her disability.” (Avila, 165 Cal.App.4th at 1252.) “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations.” (Morisky v. Broward County (11th Cir. 1996) 80 F.3d 445, 448; Soria, 5 Cal.App.5th at 592.) Additionally, “[e]vidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision.” (Avila, 165 Cal.App.4th at 1251.)

It does not appear to the Court that FEHA imposes an interactive process requirement on a licensing board. The interactive process requirement in Gov. Code § 12940(n), the section cited by Plaintiff in his Opposition (p. 5:4), applies to “an employer or other entity covered by this part.” There is no corresponding interactive process requirement under section 12944, the section applying to licensing boards. Though even if section 12940(n) did apply here, the claim would still fail based on the lack of notice. The duty to engage in the interactive process arises “in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition,” (Gov. Code § 12940(n)).

Plaintiff has failed to present a triable issue of material fact as to whether Defendants were placed on notice of the disability on which his claims are based. Plaintiff’s letter to the Board requesting accommodation stated that Plaintiff suffered from a “learning disability” that prevented him from passing the USMLE until his fifth attempt. (SAC, Ex. 1.) These are only “[v]ague or conclusory statements revealing an unspecified incapacity” (Soria, 5 Cal.App.5th at 592), and so are insufficient to have placed Defendants on notice of Plaintiff’s performance anxiety.

Plaintiff argues that the letter gave sufficient notice because it offered to provide more information regarding Plaintiff’s disability upon request. (SAC, Ex. 1.) However, Plaintiff bears the initial burden of giving notice: “Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent ... the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (Scotch, 173 Cal.App.4th at 1013; Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1169.) Particularly in this context, where Plaintiff is not an employee that regularly interacts with the Board but is merely an applicant for licensure, it is clear that Plaintiff’s disability and resulting limitations were “not open, obvious, and apparent” to the Board; it was thus incumbent on Plaintiff to identify those details to the Board. Plaintiff’s letter suggested reasonable accommodations, but did not identify the disability that Plaintiff suffered from or any of the resulting limitations; Plaintiff concedes that his performance anxiety is not the disability that he requested the Board to accommodate. (UMF 46.) Plaintiff has presented no evidence showing that the Board had knowledge of his performance anxiety when it decided not to grant accommodation. Consequently, his claims under FEHA, the ADA, and the Rehabilitation Act each fail. (See E.R.K. ex rel. R.K. v. Hawaii Dept. of Educ. (9th Cir. 2013) 728 F.3d 982, 992 [a plaintiff’s prima facie case under Rehabilitation Act is identical to the ADA “except that the plaintiff must also prove that the relevant program receives federal financial assistance”].) The motion for summary judgment is granted.