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Jacob Lopez, was an employee of the Los Angeles County Metropolitan Transportation Authority. In February 2014 Lopez went on medical leave and submitted a doctor’s note stating he was “to remain totally disabled from work,” because of pain in his back that could not be resolved by ergonomics at work.

When Lopez was ready to come back to work, the Authority did not allow him to return to his position as a transit security lieutenant because his doctor said Lopez had certain physical restrictions.

Lopez sought disability benefits from the California Public Employees’ Retirement System (CalPERS). In his application to CalPERS Lopez claimed that he had “cumulative trauma” to his back and hands, anxiety, and depressive symptoms; that he had lifting, sitting, and standing restrictions and that he was unable to perform his job.

He also filed a workers’ compensation claim against the Authority, claiming he suffered hand, back, and psychological injuries.

In September 2015 CalPERS approved Lopez’s application for disability retirement benefits, finding Lopez was “substantially incapacitated from the performance of [his] usual duties as a Transit Security Lieutenant . . . based upon [his] orthopedic (low back, bilateral hands) condition.” In December 2016 the Workers’ Compensation Appeals Board approved a settlement between Lopez and the Authority for $65,000.

Lopez then filed a civil action, alleging the Authority violated provisions of the Fair Employment and Housing Act (FEHA) that prohibit disability discrimination and that require employers to engage in good faith in the interactive process to find reasonable accommodations.

The trial court granted the Authority’s motion for summary judgment, ruling Lopez could not prevail on either of his two causes of action, in part because he was judicially estopped from asserting he could have performed the duties of his prior position. The court of appeal affirmed the dismissal in the unpublished case of Lopez v Los Angeles County Metropolitan etc.

The trial court ruled that, because Lopez stated in his disability application with CalPERS and in his Workers’ Compensation Appeals Board proceeding that he could not work as a transit security lieutenant, and because Lopez received benefits from CalPERS and settled his workers’ compensation claim, he was judicially estopped from contending he could perform the essential functions of the position.

Several courts have held that, to prevail on a cause of action for failure to engage in good faith in the interactive process, the plaintiff must identify a reasonable accommodation that was available at the time the interactive process (should have) occurred and that the defendant employer could have offered.

Lopez never argued he needed an accommodation, reasonable or otherwise, to return to his position as a transit security lieutenant.