Wilson v. Sears, Roebuck and Co. et al

Filing 83

ORDER denying 75 Motion In Limine to Bifurcate; denying 76 Motion In Limine to Bifurcate; and DENYING Plaintiffs request to Purse Claim for Failure to Engage in Interactive Process. The parties must prepare, serve, and lodge the Proposed PTC Order by April 2, 2011. The Final Pretrial Conference be held on April 9, 2012 at 11:00 a.m. in Courtroom 14. Signed by Judge M. James Lorenz on 1/3/2012. (mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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13 GLEN WILSON,
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Plaintiff,
v.
SEARS, ROEBUCK AND CO.,

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Defendant.

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Civil No. 08-cv-2061-L(JMA)
ORDER
(1) DENYING DEFENDANT’S
MOTIONS IN LIMINE [DOCS. 75,
76],
(2) DENYING PLAINTIFF’S
REQUEST TO PURSUE CLAIM
FOR FAILURE TO ENGAGE IN
INTERACTIVE PROCESS [DOC.
74]; AND
(2) RESETTING FINAL PRETRIAL
CONFERENCE

22 I.

MOTIONS IN LIMINE

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On October 10, 2011, Defendant Sears, Roebuck and Co. filed two motions in limine.

24 The first seeks to bifurcate the trial on the issues of liability and punitive damages (Doc. 75) and
25 the second seeks to bifurcate the trial on the issues of liability and damages (Doc. 76).
26 Defendant argues that bifurcation will promote judicial economy, and with respect to bifurcating
27 the punitive damages from the liability portion of trial, that the Court should apply California
28 law that mandates bifurcation of punitive damages claims. Plaintiff Glen Wilson opposes both
08cv2061

1 motions, arguing, in essence, that bifurcation would be a waste judicial resources given that this
2 is a bench trial. The Court agrees with Plaintiff, and therfore DENIES both of Defendant’s
3 motions.
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FAILURE TO ENGAGE IN THE INTERACTIVE PROCESS

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During the last Final Pretrial Conference held on September 19, 2011, the Court ordered

7 Plaintiff to submit supplemental briefing regarding whether he should be allowed to pursue a
8 claim against Defendant for failure to engage in the interactive process. Thereafter, Plaintiff
9 filed the supplemental brief, arguing that in asserting a claim for failure to accommodate under
10 California Government Code § 12940, Defendant was placed on notice of all violations included
11 therein, and that asserting a claim for failure to accommodate necessarily implicates an
12 allegation for failure to engage in the interactive process. The Court disagrees.
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California courts have agreed that failure to engage in the interactive process is a separate

14 violation that is independent from a failure to provide a reasonable accommodation for a
15 disability. See Cal. Gov’t Code §§ 12940(m)–(n); Nadaf-Rahrov v. Neiman Marcus, 166 Cal.
16 App. 4th 952, 983 (2008); Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 61 (2006). In
17 Nadaf-Rahrov, the California Court of Appeals explained the difference between the two claims
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Section 12940(m) applies even without a showing that the employer
failed to engage in the interactive process. Where a necessary
accommodation is obvious, where the employee requests a specific and
available reasonable accommodation that the employer fails to provide,
or where an employer participates in a good faith interactive process
and identifies a reasonable accommodation but fails to provide it, a
plaintiff may sue under section 12940(m). Section 12940(n), which
requires proof of failure to engage in the interactive process, is the
appropriate cause of action where the employee is unable to identify a
specific, available reasonable accommodation while in the workplace
and the employer fails to engage in a good faith interactive process to
help identify one, but the employee is able to identify a specific,
available reasonable accommodation through the litigation process. In
short, the two causes of action address different factual circumstances.
166 Cal. App. 4th at 983. Based on the foregoing and Plaintiff’s failure to mention the

27 interactive process anywhere in his complaint, the Court finds that Plaintiff has not pled a claim
28 under § 12940(n) and therefore cannot proceed to trial on that claim.
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08cv2061

1 III.

CONCLUSION & ORDER

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In light of the foregoing, the Court hereby:

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(1)

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and punitive damages (Doc. 75);
(2)

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DENIES Defendant’s motion in limine to bifurcate trial on the issues of liability
and damages (Doc. 76);

(3)

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DENIES Defendant’s motion in limine to bifurcate trial on the issues of liability

DENIES Plaintiff’s request to allow him to introduce evidence that Defendant
failed to engage in the interactive process;

(4)

ORDERS the parties to prepare, serve, and lodge the Proposed PTC Order by

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April 2, 2011 in compliance with Civil Local Rule 16.1(f.6) in accordance with

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this order; and

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(5)

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ORDERS the Final Pretrial Conference be held on April 9, 2012 at 11:00 a.m. in
Courtroom 14.

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IT IS SO ORDERED.

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17 DATED: January 3, 2012
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M. James Lorenz
United States District Court Judge

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HON. JAN M. ADLER
22 UNITED STATES MAGISTRATE JUDGE
23 ALL PARTIES/COUNSEL
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08cv2061