Brown v. Dept. of Corrections and Rehabilitation CA3

Filed 9/23/24 Brown v. Dept. of Corrections and Rehabilitation CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

TERESA BROWN, C095798

Plaintiff and Respondent, (Super. Ct. No.

34201500176321CUOEGDS)

v.

DEPARTMENT OF CORRECTIONS AND

REHABILITATION,

Defendant and Appellant.

Plaintiff Teresa Brown is a Seventh-day Adventist who observes the Sabbath from

sundown Friday through sundown Saturday. Defendant California Department of

Corrections and Rehabilitation (CDCR) found her ineligible for employment as a

correctional officer based on her unwillingness to work during this time. We previously

remanded this matter for the trial court to determine, under Government Code section

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12940, subdivision (l)(1),1 whether CDCR had demonstrated that it explored any

available reasonable alternative means of accommodating Brown’s observance of

Sabbath but is unable to do so without undue hardship. On remand, the trial court found

CDCR was unable to carry its burden and entered remedial orders and judgment in

Brown’s favor.

In this appeal, CDCR argues: (1) the trial court misinterpreted our instructions on

remand; and (2) the trial court erred by disregarding uncontroverted evidence that

established no accommodation was possible without undue hardship. We affirm the

judgment.

I. BACKGROUND

A. Factual Background

Brown applied to be a correctional officer with CDCR in 2013. At the time,

CDCR operated more than 30 adult institutions, had a budget exceeding $10 billion, and

employed about 35,000 to 40,000 correctional officers.

As part of the application process to become a correctional officer, Brown

indicated a “[w]illingness to work weekend shifts (e.g., Saturday, Sunday, and/or

Holidays) in emergency situations, on an as-needed basis, and/or on a regular rotating

basis,” a “[w]illingness to work required overtime,” and a “willingness to work on-call

hours as required.” On a separate form, she checked a box indicating she was not “freely

willing to work split shifts, nights, weekends and holidays.” She submitted supplemental

information to this answer explaining that, because of her faith, she could not work

Friday after sunset or Saturday before sunset. In a subsequent interview conducted by an

investigator with CDCR’s background investigation unit, Brown reiterated this limitation.

1 Undesignated statutory references are to the Government Code.

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The investigator reported Brown’s unwillingness to work from sundown Friday to

sundown Saturday to her supervisor. The supervisor considered the State Personal

Board’s job description for a correctional officer, the memorandum of understanding

between the California Correctional Peace Officers Association and the State (MOU), and

CDCR’s apprenticeship program before deciding to reject Brown’s application based on

her unwillingness “to work day, evening, or night shifts, weekends and holidays, and to

report for duty at any time emergencies arise” as specified by the State Personnel Board.

CDCR sent Brown a letter explaining that due to her inability to meet this criteria,

her name had been removed from the list of eligible candidates.

B. Procedural Background

Brown subsequently filed a complaint alleging two causes of action against CDCR

under the California Fair Employment and Housing Act: (1) religious discrimination

under section 12940, subdivision (a); and (2) failure to provide accommodation under

section 12940, subdivision (l)(1). The first cause of action did not survive summary

adjudication.

After a bench trial on Brown’s second cause of action, the trial court found CDCR

was entitled to judgment in its favor. In its statement of decision, the court explained that

its ruling was based on the “bona fide occupational qualification” defense. Section 12940

provides, in relevant part: “It is an unlawful employment practice, unless based upon a

bona fide occupational qualification . . . [¶] . . . [¶] (l)(1) For an employer or other entity

covered by this part to refuse to hire or employ a person or to refuse to select a person for

a training program leading to employment or to bar or to discharge a person from

employment or from a training program leading to employment . . . because of a conflict

between the person’s religious belief or observance and any employment requirement,

unless the employer or other entity covered by this part demonstrates that it has explored

any available reasonable alternative means of accommodating the religious belief or

observance, including the possibilities of excusing the person from those duties that

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conflict with the person’s religious belief or observance or permitting those duties to be

performed at another time or by another person, but is unable to reasonably accommodate

the religious belief or observance without undue hardship, as defined in subdivision (u) of

Section 12926, on the conduct of the business of the employer or other entity covered by

this part. Religious belief or observance, as used in this section, includes, but is not

limited to, observance of a Sabbath . . . .” (Italics added.)

The court concluded: “the Correctional Officer availability standards . . .

constitute bona fide occupational qualifications for the Correctional Officer position.”

The court explained: “Correctional Officer availability standards” “describe in summary

form the various published availability-for-work standards established by the State

Personnel Board and CDCR.” The standards include “the willingness to work day,

evening, swing or night shifts, weekends, (e.g., Saturday, Sunday, and/or Holidays); to

report for duty at any time emergencies arise, to report for duty on an as-needed basis or

for on-call hours as required, and/or to work required overtime as assigned.” The court

determined Brown was required to establish that she could meet the availability

standards, and her failure to do so was fatal to her remaining cause of action.

Additionally, the court noted Brown had otherwise established a prima facie claim,

but the applicability of the bona fide occupational qualification defense eliminated any

need to address whether CDCR met its burden under section 12940, subdivision (l)(1) to

establish it initiated good faith efforts to accommodate her belief or that no

accommodation was possible without producing undue hardship.

In an unpublished opinion, a different panel of this court concluded the trial court

erred by deciding Brown’s claim based on the bona fide occupational qualification

defense contained in the prefatory part of section 12940. This court reversed the

judgment and remanded for the trial court to analyze the evidence under section 12940,

subdivision (l)(1).

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On remand, the parties submitted further briefing and the trial court read and

analyzed the trial record. The record on appeal demonstrates that, at a hearing on

September 17, 2021, the court “set forth its determinations and conclusions following

remand, . . . as stated in the record, and determined thereupon that [Brown] was entitled

to judgment for the reasons stated therein.” CDCR did not designate a transcript of this

hearing as part of the record on appeal. The minute order for the September 17, 2021

hearing states: “The Court ruled that the evidence did not prove that the requested

accommodation would bring an undo [sic] hardship to the defendant and requested that

counsel assist with the formulation of a remedial order.”

On December 22, 2021, the trial court issued an “order on submitted matter” that

addressed the structure and extent of the appropriate remedial orders Brown is entitled to

following the court’s determination that CDCR was unable to carry its burden to

demonstrate that any available accommodation of her religious beliefs would pose undue

hardship under section 12940, subdivision (l)(1). The court also entered judgment in

favor of Brown.

CDCR submitted a timely appeal from the trial court’s December 22, 2021 order

and judgment.

II. DISCUSSION

A. Adequacy of Record for Review

“ ‘A judgment or order of the lower court is presumed correct. All intendments

and presumptions are indulged to support it on matters as to which the record is silent,

and error must be affirmatively shown. This is not only a general principle of appellate

practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v.

Superior Court (1970) 2 Cal.3d 557, 564.) The appellant must “provide an adequate

record to assess error.” (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “ ‘Failure to

provide an adequate record on an issue requires that the issue be resolved against

[appellant].’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,

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187.) With respect to the trial court’s determination that CDCR did not carry its burden

under section 12940, subdivision (l)(1), the record on appeal does not contain the trial

court’s full articulation of its reasoning. Rather, CDCR cites the December 22, 2021

order on appropriate remedial orders that “recounts . . . some of the observations set forth

at the September 17, 2021 hearing, as detailed more fully in the record of that hearing.”

(Italics added.) Therefore, as a threshold matter, it does not appear CDCR can

demonstrate error as to rulings made at the September 17, 2021 hearing, because we

cannot fully assess the trial court’s reasoning. (See Rhule v. WaveFront Technology, Inc.

(2017) 8 Cal.App.5th 1223, 1228-1229 & fn. 5 [succinct trial court rulings did not

sufficiently capture trial court’s reasoning; no reporter’s transcript or agreed or settled

statement of the proceedings at pertinent hearings were provided].) Nonetheless, because

the trial court did recount some of its observations in the record we do have, we will

briefly address the arguments raised by CDCR in this appeal.

B. The Trial Court Correctly Interpreted Our Instructions on Remand

CDCR argues the trial court misinterpreted our instructions on remand.

Specifically, CDCR contends “[t]he trial court erred because it interpreted this Court’s

opinion as requiring it to disregard the crucial undisputed evidence that Brown would not

remain at or report to work in an emergency, if it occurred on her Sabbath.”2 CDCR has

identified nothing in the record that permits us to conclude the trial court disregarded this

evidence or that the evidence has any bearing on the court’s conclusion that CDCR did

not meet its burden. CDCR’s argument relies upon a portion of the trial court’s

December 22, 2021 order that responded to CDCR’s assertion that it is not required to

2 Brown introduced evidence that she would work during her Sabbath in certain

emergency situations including a riot, a life being at stake, or an injury. CDCR’s point is

Brown did not agree to stay at work or be called in for any situation CDCR deems an

emergency.

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accommodate an applicant who cannot or will not perform the essential functions of the

position. As part of its response, the trial court explained this court’s prior opinion

“explicitly states that ‘the evidence demonstrates CDCR employs correctional officers

who are at times unavailable or unwilling to work’ [citation]. This finding functionally

eliminated the factual basis upon which this Court distinguished Plaintiff from other

members of her faith that have been successfully employed at CDCR.” The trial court

then further expanded in a footnote: “Plaintiff clearly introduced evidence that

Defendant tolerated unavailability in a variety of contexts. At the same time, this Court’s

analysis of the trial evidence was that CDCR had never, at any time in the past, extended

employment to a person who was unwilling to report in the event of an emergency. This

was the very basis for the distinction between plaintiff and other members of her faith

who had been employed at CDCR. [Citation.] Nevertheless, a proper respect for the

structure of our judicial system requires a clear recognition that this Court is bound by the

findings of the Appellate Court.” It is not clear from the record why these statements by

the trial court are necessary or how they are responsive to CDCR’s assertion that it is not

required to accommodate an applicant who cannot or will not perform the essential

functions of the position. It is possible the trial court was attempting to explain its earlier

application of the bona fide occupational qualification defense to this case. As our prior

opinion explained, “ ‘[B]ona fide occupational qualification’ is a term of art with a

distinct meaning” from occupational qualifications. (Nadaf-Rahrov v. Neiman Marcus

Group, Inc. (2008) 166 Cal.App.4th 952, 975, fn. 10.) Even if the defense could apply to

a facial neutral policy, it was not supported by the evidence. Nothing in the trial court’s

comments conflict with this court’s statement that “the evidence demonstrates CDCR

employs correctional officers who are at times unavailable or unwilling to work.” (Italics

added.) Nor does this court’s statement conflict with the idea that Brown could be unique

for stating before she was employed that she would not work during her Sabbath even if

called in to respond to an emergency. The trial court ultimately reached the correct

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conclusion when it stated: “[I]t seems clear that the Appellate Court intended that

accommodation inquiry must be made even where the job requirement at issue

effectuated an essential function.” CDCR may not avoid its burden under section 12940,

subdivision (1)(1) by asserting that willingness to work during any emergencies or at any

time is an essential function of the correctional officer position. Section 12940,

subdivision (a)(1) provides that an employer can refuse to hire individuals with physical

or mental disabilities who are unable to perform “essential duties” even with reasonable

accommodations, but there is no equivalent language in subdivision (l)(1) regarding

religious observances. CDCR’s reliance on the “essential duties” concept and authorities

applying it are inapt. (E.g., Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729,

743 [alleged disability discrimination]; Quinn v. City of Los Angeles (2000) 84

Cal.App.4th 472, 475 [same].) Under section 12940, subdivision (l)(1), “[o]nce the

employee establishes a prima facie case, then the employer must establish it initiated

good faith efforts to accommodate or no accommodation was possible without producing

undue hardship.” (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.)

Because the trial court had already determined Brown established a prima facie case, the

question on remand was whether CDCR could meet its burden under section 12940,

subdivision (l)(1). We turn now to that question.

C. The Trial Court’s Determination that CDCR Did Not Meet Its Burden

Under section 12940, subdivision (l)(1), CDCR had the burden to demonstrate it

“has explored any available reasonable alternative means of accommodating the religious

belief or observance, including the possibilities of excusing the person from those duties

that conflict with the person’s religious belief or observance or permitting those duties to

be performed at another time or by another person, but is unable to reasonably

accommodate the religious belief or observance without undue hardship, as defined in

subdivision (u) of Section 12926, on the conduct of the business of the employer . . . .”

“The reasonableness of the employer’s efforts to accommodate is determined on a case

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by case basis.” (Soldinger v. Northwest Airlines, Inc., supra, 51 Cal.App.4th at p. 370.)

“If the employee proves a prima facie case and the employer fails to initiate an

accommodation for the religious practices, the burden is then on the employer to prove it

will incur an undue hardship if it accommodates that belief.” (Id. at p. 371.) Section

12926, subdivision (u) defines “undue hardship” as “an action requiring significant

difficulty or expense, when considered in light of the following factors: [¶] (1) The

nature and cost of the accommodation needed. [¶] (2) The overall financial resources of

the facilities involved in the provision of the reasonable accommodations, the number of

persons employed at the facility, and the effect on expenses and resources or the impact

otherwise of these accommodations upon the operation of the facility. [¶] (3) The

overall financial resources of the covered entity, the overall size of the business of a

covered entity with respect to the number of employees, and the number, type, and

location of its facilities. [¶] (4) The type of operations, including the composition,

structure, and functions of the workforce of the entity. [¶] (5) The geographic

separateness or administrative or fiscal relationship of the facility or facilities.”

“ ‘Although the state and federal antidiscrimination legislation “differ in some

particulars, their objectives are identical, and California courts have relied upon federal

law to interpret analogous provisions of the state statute.” ’ ” (Soldinger v. Northwest

Airlines, Inc., supra, 51 Cal.App.4th at p. 367, fn. 9.) The United States Supreme Court

recently explained that, under Title VII of the Civil Rights Act of 1964, “ ‘undue

hardship’ is shown when a burden is substantial in the overall context of an employer’s

business.” (Groff v. DeJoy (2023) 600 U.S. 447, 468.) Many lower courts, including in

many authorities relied upon by Brown, had previously interpreted “undue hardship” to

mean any effort or cost that is more than de minimis. (Id. at p. 454.)

The record before us indicates the trial court based its determination that CDCR

did not meet its burden at least in part on its finding that “no particularized inquiry

regarding the actual extent of any accommodation required by [Brown] was undertaken;

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the ‘interactive process’ did not proceed here.” Further, the trial court indicated Brown’s

evidence “established that some unavailability was routinely accommodated, in a variety

of settings and using a variety of modalities. These included the institutional use of

management directed positions, and the employee’s preliminary use of shift swaps,

parental leave and holiday time off etc. so that the extent of any required remaining

accommodation could be quantified.” The trial court explained that because Brown’s

application was rejected at the outset, no in-depth consideration of her unique

circumstances occurred, and the extent of any required accommodation could not be

quantified, “and therefore it could not be determined whether such required

accommodation might or would interfere with [CDCR’s] business operations or involve

undue hardship.” (Fn. omitted.) These conclusions are supported by the evidence and

none of CDCR’s arguments sufficiently address the trial court’s concerns.

CDCR contends Brown did not provide substantial evidence controverting

CDCR’s showing of undue hardship. This argument misunderstands the parties’ relative

burdens and the standard of review on appeal. “Where, as here, an employer fails to meet

its burden of proving undue hardship, the question on appeal is ‘ “whether the evidence

compels a finding in favor of the appellant as a matter of law.” ’ [Citation.] Specifically,

the question is whether the [defendant]’s evidence of financial burden was (1)

‘ “ ‘uncontradicted and unimpeached’ ” ’ and (2) ‘ “ ‘of such a character and weight as to

leave no room for a judicial determination that it was insufficient to support a finding.’ ” ’

[Citations.] In fact, ‘[w]here, as here, the judgment is against the party who has the

burden of proof, it is almost impossible for him to prevail on appeal by arguing the

evidence compels a judgment in [its] favor.’ ” (Atkins v. City of Los Angeles (2017) 8

Cal.App.5th 696, 734.) CDCR has failed to meet this burden.

There was evidence that CDCR did not explore potential ways that Brown could

have been hired while allowing her to observe the Sabbath. The supervisor testified that,

at the time Brown was rejected, there was no way to look into the availability of a

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management directed position that did not work during the Sabbath. He also did not

know the amount of involuntary overtime and emergencies occurring at different

institutions. Brown’s expert on policies, procedures, and accommodations based on

religion at CDCR testified that some prisons never use involuntary overtime.

Additionally, the expert testified correctional officers are not held on the job if they are

going on their days off or are on their days off. Furthermore, the court heard evidence

regarding how other individuals who observe the Sabbath had been accommodated. The

evidence simply did not foreclose the possibility that Brown could have been

accommodated at a facility somewhere.

CDCR argues “the undisputed fact that Brown would not work on her Sabbath,

even in an emergency, established an undue hardship.” Relatedly, CDCR argues it

demonstrated “the safety issues associated with Brown’s unwillingness to work during

her Sabbath constitute undue hardship.” CDCR’s citations to the record do not fully

support its assertions let alone establish the evidence compelled a finding in its favor.

The record indicates the unavailability of other individuals has been accommodated even

for emergencies without creating safety issues. Brown’s expert testified that rarely if ever

does CDCR call in off-duty officers other than those who are part of an emergency

response team or investigative unit.

CDCR argues it demonstrated that accommodating Brown’s unavailability would

amount to preferential treatment over other officers and violate the MOU. CDCR’s

citations to the record do not support its assertions, let alone establish that the evidence

compelled a finding in its favor. CDCR cites nothing in the MOU nor any testimony that

demonstrates the MOU prohibits the shift swaps proposed by Brown. Additionally, each

facility has approximately 70 percent bid positions and 30 percent management directed

positions. Bid positions are awarded by seniority, but management directed positions are

awarded at the discretion of management without violating the MOU. Other individuals

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who observe a Sabbath have been accommodated with management directed positions

and are not called in on Sabbath for emergencies.

CDCR argues accommodating Brown’s unavailability would be detrimental to

officer morale. Yet again, CDCR’s citations to the record do not fully support its

assertions let alone establish the evidence compelled a finding in its favor. Further, there

is evidence in the record indicating that similar accommodations have been made without

impacting morale. Additionally, only “ ‘coworker impacts’ that go on to ‘affec[t] the

conduct of the business’ ” are relevant. (Groff v. DeJoy, supra, 600 U.S. at p. 472.) “[A]

hardship that is attributable to employee animosity to a particular religion, to religion in

general, or to the very notion of accommodating religious practice cannot be considered

‘undue.’ If bias or hostility to a religious practice or a religious accommodation provided

a defense to a reasonable accommodation claim, Title VII would be at war with itself.”

(Ibid.)

CDCR argues accommodating Brown’s unavailability would “interfere” with

CDCR’s apprenticeship program but its citations to the record do not establish this fact.

Indeed, another Sabbath observer was accommodated in the apprenticeship program.

CDCR demonstrates no basis to disturb the trial court’s conclusion that CDCR

failed to meet its burden under section 12940, subdivision (l)(1) to demonstrate that any

available accommodation of Brown’s religious beliefs would pose undue hardship.

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III. DISPOSITION

The judgment is affirmed. Teresa Brown shall recover her costs on appeal. (Cal.

Rules of Court, rule 8.278(a)(1) & (2).)

/S/

RENNER, J.

We concur:

/S/

EARL, P. J.

/S/

ROBIE, J.

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