Nealy v. City of Santa Monica, 2015 WL 632228 (Cal. Ct. App. 2015)

Tony Nealy worked as a solid waste equipment operator for the City of Santa Monica before injuring his knee in July 2003 while moving a large bin full of food waste. Nealy was temporarily totally disabled due to the injury until 2005 when he was released to do “light duty” work after which time he was reassigned to a groundskeeper position. A year later, Nealy again injured himself on the job (this time a lower back injury) and never returned to work again. Over the next several years, Nealy and the City had several “accommodations meetings,” which did not result in an offer of a job for which Nealy could perform the essential functions with an accommodation. Finally, in 2010, Nealy submitted an application for a job as a city planning staff assistant, but the City determined that Nealy did not meet the necessary qualifications for the position. The City then sent Nealy a letter stating it was unable to provide him with reasonable accommodation into an alternative position because he was not minimally qualified for the only position available at the time that was not a promotion.

Nealy exhausted his administrative remedies and filed a lawsuit against the City, alleging disability discrimination, failure to reasonably accommodate a disability, failure to engage in the interactive process and retaliation. The trial court granted summary judgment in favor of the City, and the Court of Appeal affirmed. The Court first affirmed summary judgment based on the statute of limitations and the inapplicability of the “continuing violation doctrine.” The Court also affirmed summary judgment based on evidence that Nealy could not perform some of the essential functions of the solid waste equipment operator, with or without reasonable accommodation, and that the City was not required to eliminate essential functions of the job (e.g., heavy lifting and kneeling) as part of a reasonable accommodation. The City also was not required to “provide an indefinite leave of absence to await possible future vacancies” in jobs Nealy might be able to perform. The Court also affirmed summary adjudication of the claims for failure to engage in the interactive process (the City met with and informed Nealy about its vacant positions) and retaliation (Nealy’s exercise of his right to request reasonable accommodation was not protected activity within the meaning of the statute). Compare Nigro v. Sears, Roebuck & Co., 2015 WL 774633 (9th Cir. 2015) (summary judgment in favor of employer in disability discrimination case reversed, based principally upon employee’s own “self-serving” testimony).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020; www.jurispub.com), co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.