CORY JAMES v. CITY OF LOS ANGELES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant City of Los Angeles (the City) offered plaintiff Cory James employment as a firefighter, conditional upon his passing a medical examination.   James failed to pass the color vision portion of the examination, and was not hired.   Specifically, James failed to pass each of the three color-vision tests that are administered successively by the City in order to afford an applicant three opportunities to demonstrate adequate color-vision perception, a bona fide occupational qualification for the firefighter job.   He sued the City under the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900, et seq.) for disability discrimination, for failure to reasonably accommodate his disability (Gov.Code, § 12940, subd. (m)), and for failure to engage in a good faith interactive process (Gov.Code, § 12940, subd. (n)).  The trial court granted summary judgment in favor of the City, and James appeals.   We conclude that summary judgment was proper, and affirm.

FACTS

After James passed the written and oral examinations for employment as a City firefighter, the City offered him employment contingent on passing a City-administered medical examination.   His preemployment medical examination, however, indicated that his “ ‘ability to promptly and accurately identify colors is impaired,’ ” and he was disqualified from employment as a firefighter.   The City's civil service rules provide that a candidate for a firefighter position may be disqualified for “[d]eficiency in color perception of such a nature as to preclude prompt and accurate identification of colors.”  (Rules Bd. of Civ. Service Comrs. of City of L.A., Appendix C, § 13(a).)

The City's medical examination involves three successive tests for color vision.   The candidate is first given the “ ‘Titmus Six-Plate Ishihara Test,’ ” which requires correct identification of five out of six colors to pass.   A candidate who fails that test is given the “ ‘Expanded Ishihara Test,’ ” which requires correct identification of 13 out of 15 colors.   A candidate who also fails that test is given a PC40 “ ‘Color Naming’ ” Test, which requires correct identification of 37 out of 40 colors to pass.   The PC40 Color Naming Test was designed specifically for the City, in order to determine the degree of the candidate's color-vision deficiency.   A candidate who fails to pass all three tests is disqualified from being a City firefighter.   A candidate who fails the Ishihara Tests but passes the Color Naming Test is eligible to be hired notwithstanding his or her mild color vision deficiency.   The City's evidence showed that James failed to pass the Six-Plate Ishihara Test, correctly identifying only one out of six colors;  he failed to pass the Expanded Ishihara Test, identifying just two of 15 colors;  and he failed to pass the Color Naming Test, correctly identifying just 27 of 40 colors.

The City informed James of his medical disqualification and of his right to appeal the disqualification with documentation, “such as medical test results or medical records that support his appeal.”   James appealed the determination, submitting the results of color-vision tests administered by his own ophthalmologist indicating that he successfully passed the Expanded Ishihara Test by identifying 15 out of 15 colors with his right eye, and 13 out of 15 colors with his left eye.   The ophthalmologist opined that the results “could be due to a mild, clinically insignificant color vision deficit or due to Mr. James' difficulty in taking the tests.” ¹

The medical board denied James's appeal, notwithstanding that his performance on his ophthalmologist's Expanded Ishihara Test would have been a passing grade if it had been administered by the City. The medical board based its decision on the fact that even James's doctors “determined he has some degree of color vision deficiency,” notwithstanding that the test results reported by James's ophthalmologist would have been sufficient to pass the City's second test, and notwithstanding the great discrepancy between the City's test results on the Expanded Ishihara Test and those submitted by James's ophthalmologist.

The City's summary judgment motion argued that James could not establish a prima facie case for disability discrimination under the FEHA, because he could not establish that he was qualified for the firefighter position.   And in the absence of any duty to hire him, it argued, the City had no duty to attempt to provide any accommodation or to engage in any interactive process with respect to James's claimed disability.

The trial court granted summary judgment, holding that James had failed to establish a prima facie case for discrimination under the FEHA. Citing Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 480, the court held that James had failed to affirmatively prove he is qualified for the job-a necessary prerequisite to a valid claim under the FEHA-because he was unable to dispute that he had failed to pass any of the three City-administered color-vision tests.   Thus, the court held, the City refused to hire James because he “failed the minimum qualifications to be hired as a City firefighter,” without regard to whether his color-vision deficiency constitutes a disability under the FEHA.

Judgment was entered in the City's favor on January 4, 2010.   James filed a timely appeal from the judgment on February 4, 2010.

DISCUSSION

In ruling on a defense motion for summary judgment, the trial court must determine whether the motion presents material facts sufficient to establish that one or more of the elements of the claim cannot be proved, or that there is a complete defense to the cause of action.  (Code Civ. Proc., § 437c, subds. (c), (o)(1) & (o)(2).)   If the defendant's motion makes such a prima facie showing, the plaintiff's opposition must demonstrate the existence of one or more disputed issues of material fact as to the cause of action or defense.  (Code Civ. Proc., § 437c, subd. (p)(2).)   Unless issues of material fact exist, no trial is required and the defendant is entitled to judgment on that claim as a matter of law.

On appeal, we apply an independent standard of review to determine whether a trial is required-whether the evidence favoring and opposing the summary judgment motion would support a reasonable trier-of-fact's determination in the plaintiff's favor on the cause of action or defense.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)   In doing so we view the evidence in the light most favorable to James, the party opposing summary judgment.   (Id. at p. 843;  Alexander v.Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)   We accept as true the facts shown by the evidence offered in opposition to summary judgment, and the reasonable inferences that can be drawn from them.   To defeat summary judgment the plaintiff cannot rely on the complaint's allegations and must show specific facts.  (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386.)

James's action sought to impose liability against the City for its refusal to hire him due to his color-vision deficiency, and for its failure to offer reasonable accommodations with respect to his deficiency and interactive processes to identify those accommodations.  (Gov.Code, § 12940, subds.(a), (m), (n).)  The FEHA provides that an employer's refusal to hire a candidate due to a physical handicap or medical condition (among other things) constitutes unlawful discrimination.   The candidate, however, must be qualified for the position he or she seeks.   The employer cannot be liable for refusing to hire a candidate based upon a bona fide occupational qualification, where the candidate “is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”  (Gov.Code, § 12940, subd. (a)(1).)

In James's claim for discrimination in employment based on physical disability, the court applies the three-part McDonnell Douglas test.   (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817].)   The plaintiff must first establish a prima facie case of discrimination based upon the disability;  if the plaintiff has made that showing, the burden then shifts to the employer to offer a nondiscriminatory reason for its adverse employment action;  once the employer has proffered a nondiscriminatory reason for its action, the plaintiff then must offer evidence that the employer's stated justification is either false or pretextual, or that the discrimination was intentional.  (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807;  Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 198.)

The City's summary judgment motion focused on the first element of this three-part process, seeking to establish that James could not establish his prima facie claim for unlawful discrimination in failing to hire him as a firefighter, because he could not establish that he was qualified for the position he sought.   According to the City, James's failure to pass the City administered color-vision tests demonstrates his inability to satisfy a bona fide occupational qualification for the position as a firefighter, immunizing the City from liability for discriminating against James based on his inability to pass any of three tests, and precluding James from establishing unlawful discrimination.  (Quinn v. City of Los Angeles, supra, 84 Cal.App.4th at p. 480 [to establish prima facie case for discrimination under the FEHA, plaintiff must prove he was qualified for position sought];  Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 [burden is placed on plaintiff to establish prima facie unlawful discrimination in order “to eliminate at the outset the most patently meritless claims, as where the plaintiff ․ was clearly unqualified․”].)

Granting summary judgment, the trial court found (1) that James must be able to establish that he is qualified for the firefighter position in order to prove discrimination under the FEHA;  (2) that the City requires candidates to pass a City-administered color-vision test in order to be qualified for the firefighter position;  and (3) that James did not pass any of three City-administered color-vision tests.   Finding that these key facts were unrebutted by James's opposition to the summary judgment motion, the trial court concluded that “the fact that Plaintiff did not pass the City's color vision tests demonstrates that he was not a ‘qualified individual’ ” for the firefighter position, rendering him unable to present a prima facie case for unlawful discrimination.

James argues that the trial court's conclusion is wrong for a number of reasons.   First, he argues that a failure to achieve the City's arbitrary passing scores for its color-vision test does not constitute proof of his inability to perform the essential functions of a City firefighter, in the absence of any evidence that it does.   Whether an employer's job requirement is an essential function for the job “ ‘is a factual determination that must be made on a case by case basis [based on] all relevant evidence.’ ”  (Deane v. Pocono Medical Center (3d Cir.1998) 142 F.3d 138, 148;  Gillen v. Fallon Ambulance Service, Inc. (1st Cir.2002) 283 F.3d 11, 25 [what constitutes essential job function is a “complex question” involving “fact-sensitive considerations”];  see Hardy v. Stumpf (1974) 37 Cal.App.3d 958, 964-966 [where employer's height and weight requirements for employment exclude many members of protected groups, employer must present evidence to establish that requirements are demonstrably related to job performance].)

On this record, however, James's argument fails.   The City's motion did in fact present evidence that the color-vision tests used by the City, and the City's determination of the appropriate passing scores for those tests, were fixed by the City with reference to extensive research procedures, and were specifically designed to correspond to the requirements of the firefighter position.   The Rules of the Board of Civil Service Commissioners for the City provide that a cause for rejection of a firefighter candidate is “[d]eficiency in color perception of such a nature as to preclude prompt and accurate identification of colors.”  (Rules Bd. of Civ. Service Comrs. of City of L.A., Appendix C, § 13(a).)   The City produced testimony that the three tests used for the City's color-vision examination “are designed to detect if an applicant for a firefighter position has any color vision deficiency, whether mild or otherwise.”   It also produced a 2004 publication of its Personnel Department describing “Development Of A Short, Standardized, And Objective Test Of Color Vision Deficiency,” evaluating various color-vision tests and determining the appropriate tests and test scores to apply in order “to determine whether the degree of [color-vision] deficiency is such that it significantly interferes with the individual's ability to promptly and accurately name colors, as required to effectively perform the job of a firefighter.”   The test procedures and the required minimum test scores were designed to establish an objective determination of a candidate's degree of color-vision deficiency “at a level commensurate with the ability to promptly and accurately identity colors.”   James's opposition offered no contrary evidence.

Determining the essential qualifications for the firefighter job, and the appropriate objective criteria for meeting those qualifications, are unquestionably within the City's discretion.  (Quinn v. City of Los Angeles, supra, 84 Cal.App.4th 482 [it is within discretion of city police department to set physical criteria for its hiring process];  Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 76 [employee's subjective

James's opposition to the summary judgment motion raised issues as to whether he could pass the color-vision test.   The City's motion presented evidence that James had failed to pass the test;  the opposition then presented evidence that James passed the Expanded Ishihara Test-the same color-vision test used by the City-when it was administered by his ophthalmologist.²  We conclude, however, that James has failed to demonstrate an issue of material fact as to the City's contention that James was not qualified to be a firefighter.   Thus, James could not establish a prima facie case for FEHA discrimination.

Critical to our analysis is a recognition that the question decided by the superior court on summary judgment is that appellant James had failed to establish a prima facie case for discrimination under the FEHA, because he did not demonstrate a disputed question of material fact regarding his failure to meet a bona fide occupational qualification for the job.   That question alone is the issue we independently review.   That, after having failed three separate City-administered color vision proficiency tests, appellant James presented evidence to a Medical Appeal Review Panel that he was able to pass certain color proficiency tests administered by private physicians, is not material to our determination of the propriety of the trial court's grant of summary.

In brief, appellant James contends that because he achieved a passing score on the Expanded Ishihara Test-one of the color vision tests used by the City-when the test was administered by his ophthalmologist, he thus demonstrated that he was capable of performing the essential job functions of a firefighter, and the City's failure to provide him reasonable accommodation or engage in the interactive process after receiving evidence of this outside testing violated FEHA. This position assumes that with the passing of the privately administered Expanded Ishihara Test, James somehow magically wiped his slate clean of the three failing results he had obtained in the City-administered color proficiency tests, and therefore the City was somehow obligated to ignore those results in assessing his appeal.

We do not see it that way.   In the absence of any evidence that its own tests were unfair or discriminatory, the City was justified in basing its hiring decisions on its own color proficiency tests.   The City's summary judgment motion established to the satisfaction of the trial court and this appellate court that the City's requirement that firefighters and police officers be able to promptly and accurately identify colors is a bona fide occupational qualification which is not violative of the FEHA. The City's job bulletin for the firefighter position states in relevant part:  “A medical examination is conducted by a City physician to evaluate the candidate's medical fitness (vision, hearing, cardiovascular, respiratory, etc.) to perform the full range of Firefighter duties, with no conditions which would affect the candidate's ability to safely perform those duties.”   The bulletin further informs:  “Regarding color vision, candidates must be able to accurately and quickly name colors and be free of other visual impairments that would restrict their ability to perform firefighter duties.”   The City's Civil Service Rules identify “[d]eficiency in color perception of such a nature as to preclude prompt and accurate identification of colors” as one of the causes for rejection of a firefighter or police officer candidate.  (Rules Bd. of Civ. Service Comrs. of City of L.A., Appendix C, § 13(a).)

As previously noted, in the City-administered tests, James correctly identified only one of six colors on the Six-Plate Ishihara Test;  the City requires five correct answers to pass this test.   He moved on to the Expanded Ishihara Test, where he correctly identified only two of 15 colors;  the City requires 13 of 15 colors correctly identified to pass this test.   Appellant James' failing score on the third test, the PC40 Color Naming Test, highlights with clarion clarity James's failure to establish a prima facie case of FEHA discrimination.   Appellant James correctly named only 27 of 40 colors;  the minimum passing score is 37 correct answers.   This test was designed for the City of Los Angeles by Dr. Robert Goldberg, the City's former Assistant Medical Director.   The test was formulated after the City conducted a research study directed toward developing an efficient, standardized, and objective test for color perception deficiency, in order to ensure that firefighters and police officers have the ability to promptly and accurately identify colors.   Significantly, the study included a job analysis that pinpointed 29 firefighter tasks for which accurate color vision is essential for effective job performance.

Thus, in the face of appellant James's presentation of several privately administered tests (which confirmed that appellant James has some color vision deficiency), the City had before it the elephant in the room:  the fact that James had failed by a large margin the PC40 Color Naming Test that the City specifically designed to test color perception for the tasks required of a Los Angeles City firefighter.   There was no reason or justification for the Medical Appeal Review Panel to disregard the reality of James's failed tests, especially the PC40 Color Naming Test. The “outside” tests did not entitle James to a “do over” or a pass, because they did not establish a disputed issue of material fact that James was qualified.

Accordingly, we affirm the trial court's grant of summary judgment on the ground that plaintiff/appellant James did not and can not establish a prima facie case of FEHA discrimination because he cannot show that he was qualified for the firefighter position.

DISPOSITION

The judgment is affirmed.   Each party shall bear its own costs on appeal.

NOT TO BE PUBLISHED.

I concur:

CHANEY, J., dissenting.

I disagree that the City of Los Angeles established the absence from the record of disputed issues of material fact, entitling it to summary judgment.

The City's civil service rules provide that a candidate for a firefighter position may be disqualified for “ ‘[d]eficiency in color perception of such a nature as to preclude prompt and accurate identification of colors.’ ”   According to the standards established by the City, a candidate who cannot attain a passing score on at least one of the three City-administered color-perception tests does not have the level of color perception that the City requires of its firefighters, and is not qualified to be hired for that position.   A candidate who attains a score that the City has specified as a passing score on at least one of those tests is not disqualified, even though he or she may have some level of impaired color vision.

Cory James took the three City-administered tests, and the City concluded he had failed to attain a passing score on any of them.

I agree that the City established, as an undisputed fact, that attaining a score specified by the City to be a passing score on one of the three City-approved color-vision tests, when properly administered by the City, is a bona fide occupational qualification for being hired as a City firefighter.   I therefore concur in that portion of the decision in this appeal.

I also agree that the City's summary judgment motion presented evidence that James did not-therefore could not-attain a City-approved passing score on any of the City-approved color-vision tests, when properly administered by the City. The City therefore made a prima facie showing that James was not qualified to be hired as a City firefighter.

But that showing was not undisputed.   In opposition to the City's summary judgment motion James presented evidence that he attained a City-approved passing score on one of the three City-approved color-vision tests when it was properly administered by his ophthalmologist-a qualified professional.   That evidence raises inferences that James either could attain a passing score on the test if it had been properly administered by the City, or that he did attain a passing score on the test when it was previously administered by the City.

These inferences are, of course, far from conclusive evidence that James is qualified to be hired as a City firefighter, or that he can in fact attain a passing score on one of the City-approved tests when it is properly administered by the City. But they do establish the existence of a material issue of disputed fact as to whether James can or cannot attain a passing score on one of the City-approved tests when the test is properly administered and scored.

The City's evidence is that James did not pass the test when the City administered and scored it;  James's evidence is that when the same test was administered and scored by a qualified professional, James could, and did, attain a passing score.   The disputed factual issue therefore is whether the City fairly and properly administered and scored the test-whether James did in fact, or could in fact, attain a passing score on one of the City-approved and City-administered tests.   For that reason, I conclude that summary judgment was not appropriate.

When the City informed James of his medical disqualification, it provided him with notice that he could appeal from its determination by presenting documentation “such as medical test results or medical records that support his appeal.”   James did appeal from the disqualification determination, and he submitted exactly the sort of documentation specified by the City's notice.   He presented the City with the results of color-vision tests showing that he could successfully pass the Expanded Ishihara Test-one of the City-specified color-vision tests-with a score that the City accepts as a passing score.   Specifically, his evidence showed that he was able to identify 15 out of 15 colors with his right eye, and 13 out of 15 colors with his left eye, far more than the City requires for a passing score on that test.³

The medical board denied James's appeal, notwithstanding that his performance on the City-specified test administered and scored by his ophthalmologist would have been a passing grade if it had been administered and scored by the City. But the medical board did not challenge the fact that James had passed the qualifying test, or the fact that the test had been given by an ophthalmologist, or even the manner in which the ophthalmologist had administered or scored the test.   Instead, it expressly based its rejection of James's appeal on a fact that cannot establish James's lack of qualification to be hired as a firefighter:  the fact that everyone agrees that James has “some degree of color vision deficiency.”   That fact was irrelevant to James's appeal, because the City itself had determined that candidates with “some degree of color vision deficiency” might nevertheless be qualified to serve as firefighters, if they can attain a City-specified passing score on one of the City-specified color-vision tests.   And the ophthalmologist had submitted test results that were-if accepted-sufficient to show that, applying the City's own standards, James's color vision deficiency would not disqualify him from being hired as a City firefighter.

Thus the fact that James has “some degree of color vision deficiency” does not show his disqualification.   Nor is it enough to say that James must attain a passing score on the City-administered test, and that the City's evidence is that he did not attain a passing score when the tests were administered by the City, for that much is undisputed.   What is disputed is whether James did not attain a passing score when the City administered and scored the test because its administration or scoring of the test was unfair or discriminatory.   James did not present direct evidence that the City's administration or scoring of its test was unfair or discriminatory.   But he did the next-best thing.   By showing that he could in fact attain a score that the City would recognize as passing when the test was properly administered and scored by a qualified professional, he presented indirect evidence that the City's administration or scoring of its test was in some manner defective.

James's appeal from the City's disqualification finding presented exactly the sort of documentation that the City told him would be relevant to impeach its disqualification of him as a City firefighter:  documentation “such as medical test results or medical records” showing his ability to attain a passing score, sufficient to qualify him to be a City firefighter, on one of the City-approved color-perception tests.   And, indeed, how else could a failing candidate show that the City's administration or scoring of its test was unfair or discriminatory?   Any showing would have to include proof that he or she could in fact attain a passing score on the City's test, for without that, there could be no prima facie showing that the City's administration or scoring of the test was defective.   And it would be impossible for a candidate to show that he or she could pass the test when it was administered and scored by the City, because the candidate could not retake the City-administered test without first winning the appeal.

James could not show conclusively that he could pass the color-vision test when it was administered by the City, and could not present direct evidence that he was able to do so.   But by showing that the test results were different when the test was administered and scored by a qualified professional, his evidence raised the inference that something might be wrong with the way the test was administered or scored by the City, and that he might be able to attain a passing score if there were not.   James's documentation made a prima facie showing that he can attain a passing score on the City-approved test when it is properly administered and scored.   That showing is either wrong, and James cannot attain a passing score when the test is properly administered and scored by the City;  or James is right, and the City's administration or scoring of the test was somehow defective or discriminatory.   One way or the other, that factual issue remains to be determined.

The law requires that we accept as true all reasonable inferences that support the plaintiff's position.  (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1152.)   Accepting as true the inference that James is able to attain a score that the City accepts as passing on one of the color-vision tests-because his evidence shows that he did when the test was administered and scored by a qualified professional-it is not undisputed that James either did not pass, or could not pass, the City's color-vision test when properly administered and scored by the City, or that he is unqualified for the firefighter position he seeks.   Faced with evidence that he could attain a passing score on the test soon after the City found that he could not, a trier of fact would be entitled to find that there was something amiss with City's result, and that James's color-vision deficiency does not disqualify him serving as a firefighter under the City's own standards.⁴

On summary judgment our task is not to find whether the City erred in disqualifying James as a City firefighter, but only to determine whether James's evidence-if accepted by a trier of fact-could support a determination that it did.   James's showing that he attained a score sufficient to pass the City-approved test does not negate City's evidence that he did not, or its determination that he could not.   But it does create a conflict in the evidence on those issues.

The existence of that conflict should be decisive on summary judgment.   I would reverse the judgment and the order granting summary judgment in favor of defendant City of Los Angeles.

FOOTNOTES

FN1. James also submitted evidence that he had passed certain other color vision tests that were not among those recognized by the City as valid..  FN1. James also submitted evidence that he had passed certain other color vision tests that were not among those recognized by the City as valid.

FN2. James's evidence indicated that in the Expanded Ishihara Test he identified 15 out of 15 colors with his right eye, and 13 out of 15 colors with his left eye.   The City accepts the identification of 13 out of 15 colors as a passing result on the Expanded Ishihara Test, and it accepts a passing result on the Expanded Ishihara Test as a passing result on the color-vision portion of the medical examination..  FN2. James's evidence indicated that in the Expanded Ishihara Test he identified 15 out of 15 colors with his right eye, and 13 out of 15 colors with his left eye.   The City accepts the identification of 13 out of 15 colors as a passing result on the Expanded Ishihara Test, and it accepts a passing result on the Expanded Ishihara Test as a passing result on the color-vision portion of the medical examination.

FN3. The City accepts correct identification of 13 out of 15 colors as a passing result on the Expanded Ishihara test..  FN3. The City accepts correct identification of 13 out of 15 colors as a passing result on the Expanded Ishihara test.

FN4. I am also concerned by the fact that after expressly inviting James to present evidence that he could pass the City-approved color-vision tests, the City apparently rejected his appeal without considering whether his evidence made that showing.   The City's failure to evaluate James's showing on appeal supports an inference that it failed to identify or offer the reasonable accommodations or interactive processes that it apparently offers to failing candidates by way of appeal (but denied to James), designed to determine James's actual ability to attain a passing score on the City-administered color-perception tests.  (See Northrup Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035-1036 [Employer has duty under FEHA to thoroughly investigate claim suggesting discrimination].)   Summary judgment was apparently improper for that reason as well..  FN4. I am also concerned by the fact that after expressly inviting James to present evidence that he could pass the City-approved color-vision tests, the City apparently rejected his appeal without considering whether his evidence made that showing.   The City's failure to evaluate James's showing on appeal supports an inference that it failed to identify or offer the reasonable accommodations or interactive processes that it apparently offers to failing candidates by way of appeal (but denied to James), designed to determine James's actual ability to attain a passing score on the City-administered color-perception tests.  (See Northrup Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035-1036 [Employer has duty under FEHA to thoroughly investigate claim suggesting discrimination].)   Summary judgment was apparently improper for that reason as well.

ROTHSCHILD, Acting P.J. NOT TO BE CHANEY, J.