Branch v. San Francisco VA Medical Center

Filing 38

ORDER to Provide Supplemental Briefing. Signed by Magistrate Judge Donna M. Ryu on 07/01/2015. (dmrlc1, COURT STAFF) (Filed on 7/1/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CICILY BRANCH,

Case No. 14-cv-03846-DMR

Plaintiff,
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v.

ORDER TO PROVIDE
SUPPLEMENTAL BRIEFING

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ROBERT A. MCDONALD,
Defendant.

United States District Court
Northern District of California

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California courts have held that the Fair Employment and Housing Act (FEHA), California

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Government Code section 12940(n), “allows an independent cause of action for employees whose

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employers fail to engage in the interactive process,” without “requir[ing] proof of the elements

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required by the [Americans with Disabilities Act].” See Wysinger v. Automobile Club of S. Cal.,

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157 Cal. App. 4th 413, 425 (2007); A.M. v. Albertsons, LLC, 178 Cal. App. 4th 455, 463-64

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(2009) (“[t]he failure to accommodate and the failure to engage in the interactive process are

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separate, independent claims involving different proof of facts.”).

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However, this lawsuit asserts federal rather than state law claims. Under federal law,

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whether plaintiffs may maintain a separate cause of action for failure to engage in the interactive

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process, or whether it is subsumed in a failure to accommodate claim, is less clear. See, e.g.,

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Rehling v. City of Chicago, 207 F.3d 1009, 1015-1016 (7th Cir. 2000); Walter v. United Airlines,

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Inc., 232 F.3d 892, *4 (4th Cir. 2000).

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The court orders the parties to submit simultaneous further briefing no more than ten pages

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in length by July 15, 2015. The parties shall address whether Plaintiff may assert a cause of action

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under the Rehabilitation Act for Defendant’s alleged failure to engage in the interactive process in

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good faith, separate from her claim that Defendant failed to provide her with a reasonable

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accommodation. If the party contends that federal law permits Plaintiff to state a separate,

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standalone claim for failure to engage in the interactive process, the party shall also address the

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question of when that claim accrued, and whether Plaintiff timely exhausted her administrative

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remedies regarding that claim.

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IT IS SO ORDERED.
Dated: July 1, 2015
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Donna M. Ryu
United States Magistrate Judge

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United States District Court
Northern District of California

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