Cristobal Zamudio v. City of Oakland

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTOBAL ZAMUDIO,
Plaintiff - Appellant,
v.
CITY OF OAKLAND,
Defendant - Appellee.
No. 09-16304
D.C. No. 3:07-cv-05713-MHP
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted May 13, 2010
San Francisco, California
Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.
Cristobal Zamudio appeals from the district court’s order granting summary
judgment to the City. He argues that the City failed to reasonably accommodate
his disability and retaliated against him for filing worker’s compensation and
FILED
MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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discrimination claims. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
California law makes it an unlawful employment practice for an employer
“to fail to make reasonable accommodation for the known physical or mental
disability of an applicant or employee.” Cal. Gov. Code § 12940(m). A
reasonable accommodation is “‘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 Inst. of Cal., 93 Cal. Rptr. 3d 338, 358 (Ct. App. 2009)
(quoting Nadaf-Rahrov v. Neiman Marcus Group, Inc., 83 Cal. Rptr. 3d 190, 211
(Ct. App. 2008)). “[A]n employer has no duty . . . to accommodate a disabled
employee by making a temporary accommodation permanent if doing so would
require the employer to create a new position just for the employee.” Raine v. City
of Burbank, 37 Cal. Rptr. 3d 899, 908 (Ct. App. 2006).
The undisputed evidence shows that heavy lifting, bending, and stooping
were essential functions of Zamudio’s gardener crew leader position. It also shows
that Zamudio’s disability rendered him incapable of performing those functions in
a manner that would not endanger his own health. He repeatedly reinjured himself
despite access to his only suggested accommodation—a helper. The City made
reasonable efforts to find him an alternative position and eventually returned him
to the gardener crew leader position after an independent doctor released him to

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return to work. In light of the evidence, the district court correctly concluded that
there was no genuine issue of material fact regarding the City’s accommodation of
Zamudio’s disability.
Zamudio also argues that the City’s delay in returning him to his position is
evidence of retaliation. However, the undisputed evidence shows that Zamudio
was not given a full release to return to work until May 2008, and he returned to
work shortly thereafter. There is no evidence that the City used the absence of a
release as a pretext to keep him out of his job. Because there is no evidence of a
causal connection between Zamudio’s protected activities and the timing of his
return to work, the district court correctly granted summary judgment to the City.
See Morgan v. Regents of Univ. of Cal., 105 Cal. Rptr. 2d 652, 665 (Ct. App. 2000)
(citing California and federal authorities).
AFFIRMED.

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Zamudio v. City of Oakland, No. 09-16304
RAYMOND C. FISHER, dissenting:
Notwithstanding the city’s commendable efforts to accommodate Mr.
Zamudio in other respects, I am not persuaded that summary judgment was
properly granted with respect to Zamudio’s claim that the city unlawfully
discriminated against him on the basis of disability in May 2005, when the city
suspended Zamudio’s employment based on his 50-pound lifting restriction.
Whether the ability to lift over 50 pounds without assistance was an essential
function of the job is a disputed issue of fact, especially in light of the omission of
any such requirement from the essential job functions analysis prepared on behalf
of the city in August 2005. Whether the city suspended Zamudio’s employment
out of concern for his safety is also disputed, especially in light of the deposition
testimony by Ms. Holmes, which indicates that Zamudio was suspended based on
the 50-pound lifting restriction rather than for other possible reasons. Our role on
summary judgment is not to decide disputed questions of fact. I therefore
respectfully dissent.
FILED
MAY 17 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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