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McCain v. Certified Grocers of California3/10/2003
ate that her functions were substantially limited by her colitis. (Id. at p. 629.)
The same is true here. Dr. Curtis released appellant to work without restriction, although he recommended various measures including the use of a power jack. The distinction between a restriction and a recommendation is significant. Dr. Curtis' report established that he felt that appellant could return to work without any restriction on his ability to perform his duties. Dr. Curtis stated that appellant "is at low risk of further recurrence as long as he is able to continue his routine of physical therapy and uses the above recommendations for his work." This establishes that at the time appellant was released to return to work, he had no physical condition which limited a major life activity. The recommendations by Dr. Curtis addressed the possibility of a future recurrence. The trial court properly granted summary judgment because appellant did not raise a triable issue of material fact as to whether appellant was disabled.
Alternatively, appellant argues that he was perceived as disabled by respondent, bringing him within the protection of FEHA. He bases this argument on the evidence that respondent partially accommodated him by providing him a power jack. The evidence that respondent furnished appellant with a power jack does not establish that it perceived him as disabled. The information respondent had was that appellant had been released to return to work without restriction and that he was able to do his work. At deposition, appellant testified that he never told respondent that he needed the air-ride tractor to continue to work, or that he would resign if not assigned one. His request for an air-ride tractor was not sufficient to establish that he was perceived as disabled. " he touchstone of a qualifying handicap or disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities." (Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1061, italics added.) The trial court properly granted summary judgment because there were no triable issues of material fact as to whether appellant was disabled or perceived as disabled.
In light of these conclusions, we need not address the arguments regarding accommodations by respondent because under FEHA it had no duty to provide accommodation to an employee who is not disabled.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
We concur:
HASTINGS, J.
CURRY, J.
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