Court of Appeal: Claimed Inability to Work With Particular Supervisor Need Not Be Accommodated

An employee clashes with her manager, takes a medical leave of absence for "stress," receives repeated extensions, and her doctor says she can come back to work, but only under a new manager.  Heard that one before?   That's what Higgins-Williams v. Sutter Medical Foundation is about.

The plaintiff-employee took CFRA/FMLA leave initially. Then she exhausted it and returned to work. Her manager immediately gave her a negative evaluation. The regional manager, Perry, began to single plaintiff out for negative treatment, such as being curt with plaintiff while being friendly with others. Then plaintiff's boss accused the plaintiff of being irresponsible with her badge and Perry allegedly grabbed her arm.  The plaintiff had a "panic attack," and did not return to work again.

Sutter granted a series of extended absences as temporary accommodations.  Plaintiff's doctor continued to insist that she could return to work under a new supervisor and perform her duties without restriction.  The doctor then certified that plaintiff could return to work in her original department, but on light duty.  The doctor would not commit to a return to work date when the plaintiff could perform her essential functions with or without an accommodation (that did not include a new supervisor).

Sutter then drew the line:

On January 24, 2011, Sutter informed plaintiff (1) that Dr. Chen had stated on January 6, 2011, that plaintiff could not return to work then, but that plaintiff wanted to return on March 1, 2011, on light duty in the Connecting to Work Program; (2) that Dr. Chen did not provide any information as to if or when plaintiff would be able to return to her clinical assistant position; (3) that there was no information to support a conclusion that additional leave as an accommodation would effectuate plaintiff‟s return as a clinical assistant; and (4) that if plaintiff did not provide such information by January 31, 2011, her employment would be terminated February 1, 2011.

Plaintiff and her doctor apparently did not get the gist of this communication.

On January 28, 2011, Dr. Chen informed Sutter that plaintiff was not medically cleared to return to work at that point, and that plaintiff would continue her regimen of psychotherapy and medications. In her deposition, plaintiff testified she did not feel she could have returned to work in the Shared Services Department with regional manager Perry or supervisor Prince on February 1, 2011. Plaintiff also testified at her deposition
that at the time of her termination, she "was willing to try‟ to return to work on March 1, 2011, in the Shared Services Department under manager Perry.

Sutter then terminated the plaintiff's employment on February 1, 2011.

So, the plaintiff sued for disability discrimination, retaliation, failure to prevent, and denial of accommodation under the Fair Employment and Housing Act.  The Court of Appeal affirmed the trial court's grant of summary judgment.

The basis for the Court of Appeal's decision is significant.  The Court reaffirmed previous case law in which the court held that inability to work for a particular supervisor is not a covered disability:

An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor‟s standard oversight of the employee‟s job performance does not constitute a disability under FEHA. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628 (Hobson) [“the inability to perform one particular job, or to work under a particular supervisor, does not constitute a qualified disability” under FEHA (italics added)]; see Weiler v. Household Finance Corp. (7th Cir. 1996) 101 F.3d 519, 522, 524-525 [both Hobson and Weiler apply the narrower federal test of disability of “substantially limits” a major life activity, rather than the broader California test of simply “limits”; Hobson was disapproved on this point in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6] (Colmenares).)

As stated above, the Court of Appeal acknowledged that the Hobson decision applied a less employee-friendly definition of disability. But the Court then held that even under the current formulation, inability to work for the current supervisor is not a disability, because it does not "limit" the major life activity of working.

The Court then held that because the plaintiff did not have a disability, she could not succeed under her claims for common law wrongful termination, denial of accommodation or failure to engage in the interactive process.

Of note, the Court of Appeal remanded the case to the trial court regarding its award of costs to Sutter.  Costs no longer are awarded to prevailing defendants as a matter of right in FEHA cases, following the California Supreme Court's decision in Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97 (discussed here). 

This case is Higgins-Williams v. Sutter Med. Foundation, and the opinion is here.

Court of Appeal: No Duty to Remove Essential Job Functions as Reasonable Accommodation and More...

The Court of Appeal in Nealy v. City of Santa Monica upheld summary judgment in a disability discrimination case.  The case involved an injured "solid waste equipment operator," which may mean garbage truck operator.  Nealy injured his right knee lifting a large bin, leading to several surgeries.

In a nutshell, the City allowed Nealy a long leave of absence. They met with him several times. His doctors placed many physical restrictions on him, precluding him from the heavy lifting required of the solid waste equipment operator.   Nealy asked for accommodations, including removing lifting requirements and allowing Nealy to work on one particular type of truck. The City took the position it was not required to remove essential job functions.  The City also looked into transfers. But  Nealy apparently was not qualified for the open, available jobs.

Nealy sued for disparate treatment, denial of reasonable accommodation, and failure to engage in the interactive process. He also sued for retaliation.  The Court of Appeal upheld summary judgment on several grounds.  The explanation of the law on each claim is clear and will help employers understand the legal issues. So, here goes:

Reasonable accommodation

The elements of a reasonable accommodation cause of action are (1) the employee suffered a disability, (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192; Nadaf-Rahrov, supra, at p. 977.)  * * *  The fact that one essential function may be up for debate does not preclude summary judgment if the employee cannot perform other essential functions even with accommodation.

In this case, there was copious evidence that Nealy could not perform one or more of the job's essential functions. The Court rejected his arguments about accommodations via removal of essential functions. 

FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 985.) There is no dispute heavy lifting was an essential function of the solid waste equipment operator—even for those who operated the automated side loader. 

The Court then turned to reassignment as a form of accommodation.  Here's the legal standard:

FEHA requires the employer to offer the employee “comparable” or “lower graded” vacant positions for which he or she is qualified. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(1), (2).) FEHA does not require a reassignment, however, if there is no vacant position for which the employee is qualified. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 767.) Additionally, FEHA does not require the employer to promote the employee or create a new position for the employee to a greater extent than it would create a new position for any employee, regardless of disability. (Cal. Code Regs., tit. 2, § 11068, subd. (d)(4); Spitzer, supra, 80 Cal.App.4th at p. 1389.)  * * * 

In cases when courts have found a triable issue on reassignment, the employees have adduced evidence obtained through discovery that vacant positions for which they were qualified existed during the relevant period, but the employer failed to offer the positions to them. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 968; Spitzer, supra, 80 Cal.App.4th at p. 1390.) Nealy has not adduced any such evidence here to dispute the City’s evidence that no other vacant positions for which he was qualified existed during the relevant period in 2010. Under FEHA, the City was thus relieved of its duty to reassign Nealy. (Spitzer, supra, 80 Cal.App.4th at p. 1389.)  * * * 

 In short, an employer can prevail on summary judgment on a claim of failure to reasonably accommodate by establishing through undisputed facts that “there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation . . . .”

Disparate treatment

The Court also held that because Nealy was not a "qualified individual," he could not prevail on a disability discrimination claim.

The showing required is identical to that required for a cause of action for failure to reasonably accommodate. That is, a qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. (Id. at p. 262.) FEHA permitted the City to discharge Nealy if he was unable to perform the essential functions of his job even with reasonable accommodations. (Gov. Code, § 12940, subd. (a)(1) [“This part does not prohibit an employer from . . . discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations . . . .”]; Green v. State of California, supra, at p. 262.) 

Interactive Process

To prevail on a claim for failure to engage in the interactive process, the employee must identify a reasonable accommodation that would have been available at the time the interactive process occurred. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018 (Scotch); Nadaf-Rahrov, supra, at p. 984.) “An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because ‘“‘[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have . . . .’”’” (Scotch, supra, at p. 1018.) But the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary judgment stage. (Id. at p. 1019.) * * * *

The only accommodations Nealy argues should have been available are (1) restructuring his old job so that he did not lift heavy objects or kneel; (2) assigning him to the automated side loader permanently; (3) reassigning him to another position; and (4) retraining. As we concluded above, the first two were not reasonable accommodations allowing him to perform the essential functions of the job, and the third was not reasonable because there were no vacant positions for which he was qualified. The fourth—retraining—does not assist Nealy. He provides absolutely no detail as to what type of retraining would have enabled him to perform the solid waste equipment operator job or some other vacant position. The bare assertion that the City should have provided retraining does not create a triable issue of fact. 

Retaliation

Nealy also lost on his retaliation claim.  The Court of Appeal made clear that he had not "engaged in a protected activity" merely by asking for a reasonable accommodation. The Court listed what counts as protected activity under the statute.

FEHA makes it unlawful for the employer to discharge or discriminate against an employee because he or she has “opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) Thus, protected activity takes the form of opposing any practices forbidden by FEHA or participating in any proceeding conducted by the DFEH or the State Fair Employment and Housing Council (FEHC). (Cal. Code Regs., tit. 2, §§ 11002, subds. (a), (b), 11021, subd. (a).) 

Opposing practices forbidden by FEHA includes seeking the advice of the DFEH or FEHC; assisting or advising any person in seeking the advice of the DFEH or FEHC; opposing employment practices the employee reasonably believes to exist and believes to be a violation of FEHA; participating in an activity perceived by the employer as opposition to discrimination; or contacting, communicating with, or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.  * * * * 

 And then the Court emphasized:

Nealy does not identify any activity that qualifies as protected activity. He contends his protected activity was seeking the City’s assistance to return to work—that is, seeking reasonable accommodation—and initiating the interactive process. These acts alone do not amount to “oppos[ing] any practices forbidden under” FEHA or participating in DFEH or FEHC proceedings. (Gov. Code, § 12940, subd. (h); Rope, supra, 220 Cal.App.4th at p. 652.) If they did, this interpretation of protected activity “‘would significantly blur and perhaps obliterate the distinction between an action for failure to accommodate or engage in the interactive process and retaliation.’” (Rope, supra, at p. 653.) 

* * * *

This case is Nealy v. City of Santa Monica and the opinion is here.


 

Ninth Circuit: Summary Judgment in Employment Discrimination Cases Should Not Happen Much

The Ninth Circuit reversed summary judgment in a disability discrimination case alleged under the California Fair Employment and Housing Act.  We can't even say what the facts are, because the court does not recite them.

What we do know is:

To establish that he was terminated by Sears because of his disability, Nigro submitted a declaration stating that on June 29, 2009, he had a phone conversation with Larry Foerster, General Manager of the Sears Carlsbad store at which Nigro worked, and Foerster told him that “[i]f you're going to stick with being sick, it's not helping your situation. It is what it is. You're not getting paid, and you're not going to be accommodated.” Nigro also testified in his deposition that Sears's District Facilities Manager Alan Kamisugu told him not to be concerned about his pay issue because Chris Adams, Sears's District General Manager, had indicated to Kamisugu that Nigro was “not going to be here anymore.” The district court disregarded the evidence proffered by Nigro, on the basis that “the source of this evidence is Nigro's own self-serving testimony.”
* * * *
Nigro's direct supervisor Jason Foss also testified that Chris Adams said to him—referring to Nigro—that “I'm done with that guy .” 

What's so unusual about this case, warranting the court to publish the opinion?  Maybe it's because the district court found that Nigro's declaration could be disregarded as "self-serving."  The court explained that is not a basis to ignore the plaintiff's declaration:

We have previously acknowledged that declarations are often self-serving, and this is properly so because the party submitting it would use the declaration to support his or her position. S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir.2007) (holding that district court erred in disregarding declarations as “uncorroborated and self-serving”). The source of the evidence may have some bearing on its credibility, and thus on the weight it may be given by a trier of fact. But that evidence is to a degree self-serving is not a basis for the district court to disregard the evidence at the summary judgment stage. See 10A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2727 (3d ed. 2011) (“[F]acts asserted by the party opposing the [summary judgment] motion, if supported by affidavits or other evidentiary material, are regarded as true.”). Here, Nigro's declaration and deposition testimony, albeit uncorroborated and self-serving, were sufficient to establish a genuine dispute of material fact on Sears's discriminatory animus. We conclude that the district court erred in disregarding Nigro's testimony in granting Sears's motion for summary judgment. 

The Court also reversed summary judgment on the plaintiff's claims for denial of accommodation and failure to engage in the interactive process, also on the basis of alleged hostility by General Manager, Foerster. 

The Court then commented about summary judgment in discrimination cases as follows, which is why I entitled this post the way I did:

We have previously held in several cases that it should not take much for plaintiff in a discrimination case to overcome a summary judgment motion. See, e.g., Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir.2008); Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir.2008); Metoyer v. Chassman, 504 F.3d 919, 939 (9th Cir.2007); Dominguez–Curry v. Nevada Transp. Dep't, 424 F.3d 1027, 1042 (9th Cir.2005); Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir.2000). “This is because the ultimate question is one that can only be resolved through a searching inquiry—one that is most appropriately conducted by a factfinder, upon a full record.” Id.

Here, Nigro presented several state law claims that deserved trial. It should not take a whole lot of evidence to establish a genuine issue of material fact in a disability discrimination case, at least where the fact issue on discrimination is genuine and the disability would not preclude gainful employment of a person working with accommodation. We acknowledge that this is not a wholly one-sided case on the side of Nigro, and Sears put forward substantial evidence showing that it had a non-discriminatory reason for terminating Nigro's employment, i.e., Sears's position that Nigro did not comply with Sears's attendance and leave policies resulting in job abandonment. It is possible that Sears will prevail at trial, but the statements attributed to Sears's supervisors by Nigro are, if not dispositive, sufficient to raise a genuine issue for the trier of fact. See Metoyer, 504 F.3d at 939 (holding that an employer's evidence of a non-discriminatory motive does not warrant entry of summary judgment when the employee also proffered evidence to the contrary).

Sure, it's still possible to win summary judgment in state and federal court.  However, there of late has been a shift in courts' willingness to grant summary judgment, at least in my opinion.  The trial courts may fear reversal, as appellate courts frequently do.  Trial courts may perceive that employers rarely take cases to trial and settle, which makes it unlikely that a courtroom will be clogged with cases that cannot be won at trial.  Who knows why the pendulum is shifting.  But it is.  

Employers and their lawyers are going to have to decide how to address this shift, whether it be arbitration in lieu of the court system, taking every case to trial until the courts shift back towards summary judgment, lobbying for a change in the law, or something else. 

This case is Nigro v. Sears Roebuck & Co. and the opinion is here. 

A Pot Pourri of Recent Employment Law Decisions

Here are some recent significant California employment law developments I missed. Long post, but chock full of employment law goodness. Or something:

Employer's Summary Judgment on Disability Discrimination and Related Claims
The court of appeal in Swanson v. Morongo Unified School District (opinion here) reversed summary judgment in favor of the school district.

Swanson was a teacher who was treated with breast cancer.  The school district voted not to renew her contract based on her performance.  Swanson believed the district's vote was based on her cancer and treatment.  She also claimed that the district failed to accommodate her by refusing to allow her to teach a second grade class rather than the assignment they gave her, and failed to adequately engage in the "interactive process."

On the discrimination claim, the court of appeal acknowledged the district demonstrated Swanson's poor performance as a legitimate reason.  That shifted the burden to Swanson to raise a triable issue of fact regarding whether discrimination motivated the district, rather than performance. Here is the pretext analysis:

Swanson had to present evidence showing (1) the District’s stated reason for not renewing her contract was untrue or pretextual; (2) the District acted with a discriminatory animus in not renewing her contract; or (3) a combination of the two. *** We conclude Swanson met this burden by presenting evidence establishing a triable issue of fact on whether the District intentionally discriminated against her when making its teaching assignments and its treatment of her after her cancer diagnosis and medical leaves. ***We conclude Swanson met this burden by presenting evidence establishing a triable issue of fact on whether the District intentionally discriminated against her when making its teaching assignments and its treatment of her after her cancer diagnosis and medical leaves. 

Here's the evidence the court found significant:

The evidence the parties presented establishes the following disputed facts creating a triable issue on Swanson’s liability theory: (1) Swanson performed well in the teaching assignments she held during her first two years with the District, but the District gave her a new teaching assignment for the first full school year after she completed her cancer treatments; (2) the District gave Swanson the new assignment knowing it would require her to spend additional time planning and preparing to teach her new class and Swanson’s weakened health condition impaired her ability to do so; (3) the District denied Swanson’s request to teach a second grade class similar to one she recently had taught at her previous school, and instead assigned the available second grade class to another teacher; (4) the District assigned Swanson to teach a kindergarten class even though she had not taught kindergarten in nearly 30 years and expressed concern her weakened immune system could not protect her from the many illnesses prevalent in kindergarten classes; (5) although promising to do so, Lowe did not provide Swanson the preevaluation format she needed to prepare for her first series of teacher observations; (6) the District did not provide Swanson the mentor teacher she requested after receiving the remediation plan or any of the other training or assistance she requested; (7) Lowe told Swanson the District wanted him to make a determination on her employment status before he had time to complete the second series of teacher observations; (8) Lowe asked Swanson to resign her teaching position even though he gave her a positive review on the first teaching observation following the remediation plan and implied her review on the second observation also would be positive; and (9) the District’s Board of Education voted not to renew Swanson’s contract before she completed the remediation plan and all of the observations were conducted.

This is to say that the court of appeal felt that a jury should decide whether the district's personnel actions against Swanson that led to her poor performance were motivated by her disability. Therefore, to win these cases, the employer should show on summary judgment that it treated the plaintiff the same as the other, similarly situated, employees.

On the failure to accommodate claim, the plaintiff claimed she would have been able to perform her essential job functions if she was assigned to teach a second grade class, rather than the kindergarten class she was assigned. Although the district showed the court several accommodations it provided, the court was unpersuaded that the district was entitled to summary judgment:

Swanson does not claim the District failed to grant her leave or any other scheduling accommodation. Instead, she alleges the District failed to reasonably accommodate her cancer-related conditions because it refused to provide her the accommodation she sought after the District decided to move her out of the reading specialist position she held during the 2007/2008 school year. Specifically, she alleges the District refused her request to teach an available second grade class. According to Swanson, the second grade class assignment was a reasonable accommodation that would allow her to perform her essential job functions because she recently had taught a second grade class when working in another district, and therefore was familiar with the curriculum and children of that age. Swanson alleged any other new teaching assignment would require additional time to prepare and plan lessons, but the effect of her cancer treatments jeopardized her ability to prepare for her new assignment. 

         *  *  *

To meet its initial burden on Swanson’s failure to accommodate claims, the District therefore had to present evidence showing the second grade position Swanson sought was not available or otherwise was not a reasonable accommodation, or the fifth grade or kindergarten assignments the District offered were reasonable accommodations that would have allowed Swanson to adequately perform her essential job functions. The District produced no such evidence. 

The court also held that the district did not adequately engage in the interactive process to determine an accommodation:

The District contends Swanson’s interactive process claims fail because it engaged in the interactive process by switching her from fifth grade to kindergarten when she objected to the fifth grade assignment. That contention is not adequate to satisfy the District’s initial burden on summary judgment. The FEHA required the District to engage in an ongoing dialogue regarding the accommodations Swanson believed she needed to mitigate her cancer-related conditions, but the District failed to present any evidence to show it engaged Swanson in such a dialogue. For example, the District offers no evidence to show it discussed with Swanson the second grade assignment she sought or provided any explanation why it could not grant her request as a reasonable accommodation. To the contrary, the evidence shows the District simply assigned Swanson to teach kindergarten and failed to engage in any further discussion with her. Accordingly, the trial court erred in granting summary judgment on the interactive process claims. 

Arbitration Compelled Even Though Insufficient Proof Unsigned Arbitration Policy Was in Effect

Stephanie Cruise signed an employment application with Kroger Corporation, in which she agreed to mandatory, final, binding arbitration. The application referenced a separate mediation and arbitration policy, which was "incorporated by reference."  After her termination, Cruise sued Kroger. Kroger moved to compel arbitration. The trial court denied the motion, holding that Kroger had not proved that Cruise had received the arbitration policy, or that the one attached to the motion was the one she had allegedly received.

The court of appeal reversed the trial court and ordered arbitration. The court held that the following language in the application "eliminate[d]" Cruise's argument there was no agreement to arbitrate:

“MANDATORY FINAL & BINDING ARBITRATION: I acknowledge and understand that the Company has a Dispute Resolution Program that includes a Mediation & Binding Arbitration Policy (the ‘Policy’) applicable to all employees and applicants for employment . . . . I acknowledge, understand and agree that the Policy is incorporated into this Employment Application by this reference as though it is set forth in full, . . . the Policy applies to any employment-related disputes that exist or arise between Employees and the Company . . . and that the Policy requires that any Employee who wishes to initiate or participate in formal proceedings to resolve any Covered Disputes must submit the claims or disputes to final and binding arbitration in accordance with the Policy.” (Italics added.)

The court rejected Cruise's argument that the employer did not sign the application, reasoning that the employer submitted the application to Cruise of signature, and that it was Kroger's own application, after all.

BUT, what of the policy?  The court of appeal accepted the trial court's conclusion that the employer had not established the existence of the policy, which governed the terms and procedures re arbitration. The court of appeal, however, ruled that Cruise was still obligated to arbitrate, only under the California Arbitration Act.

The only impact of Kroger‟s inability to establish the contents of the 2007 Arbitration Policy is that Kroger failed to establish that the parties agreed to govern their arbitration by procedures different from those prescribed in the CAA (§ 1280 et seq.). Unless the parties otherwise agree, the conduct of an arbitration proceeding is controlled by the CAA. (See, e.g., §§ 1281.6, 1282, 1282.2.) Here, because Kroger failed to establish an agreement to the contrary, the instant arbitration proceeding is to be governed by the procedures set forth in the CAA. Because this arbitration is controlled by California statutory and case law, Cruise‟s arguments that Kroger‟s Arbitration Policy is unconscionable, both procedurally and substantively, are meritless.

If this case remains good law, then (1) employers can include clear agreements to arbitrate in applications and (2) they can rely on the California Arbitration Act rather than prescribe specific procedures.

This case is Cruise v. Kroger Co .and the opinion is here.

                                                                 * * *
Here are some narrow decisions, but which may contain helpful holdings for other cases.

LA Hotel Service Charge Ordinance - Class Action - UCL Claim 

The court of appeal in Audio Visual Services Group, Inc. v. Superior Court opinion here, handled a narrow issue: whether Los Angeles's Hotel Service Charge Reform Ordinance applied to third party employees who do not traditionally depend on tips.  The Ordinance requires certain hotels to pay certain employees all service charges added to customers bills.  The Audio Visual employees provided AV services to hotels, for which they charged a fee plus a service charge. The plaintiffs sued, claiming they were owed that service charge. The Court of Appeal issued a writ, sustaining the employer's demurrer to the class complaint (extraordinary in and of itself). The court of appeal decided that the ordinance does not apply to Audio Visual's employees.  Of note, the court clearly held that the employees "unfair competition claim" under Business and Professions Code section 17200 was not actionable because the statutory claim also was without merit. So, this case can help in other UCL actions. Money quote:

In light of our construction of the Ordinance that Solares, an audio-visual technician, is not among the class of hotel workers entitled to be paid service charges pursuant to the Ordinance, Solares cannot assert a UCL claim against PSAV. Business and Professions Code section 17200 defines “unfair competition” as “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with [Business and Professions Code ] Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” The UCL claim is dependent upon a violation of the Ordinance. Thus, the class action complaint failed to state a cause of action.

U.S. Supreme Court: Whistle Blower Under Homeland Security Act Protected

Department of Homeland Security v. MacLean (opinion here)  involves an Air Marshall who reported  to MSNBC that the TSA had canceled Air Marshall missions during a time when there was a heightened security alert regarding possible Al Qaeda highjackings.  He had been told that TSA canceled missions to save money.  After MacLean made the disclosure, TSA reversed its position under pressure from Congress.

The TSA discovered MacLean was the leaker and fired him in 2006.  He sued for whistleblower retaliation. TSA argued that MacLean's disclosure was "specifically prohibited" by its regulation, which was as good as "law." TSA had issued regulations prohibiting disclosure of what they called "sensitive security information." That information could include "information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.”

Federal law generally provides whistleblower protections to an employee who discloses information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5 U. S. C. §2302(b)(8)(A). An exception exists, however, for disclosures that are “specifically prohibited by law.”

So, the question for the Court was whether MacLean's disclosure was prohibited by law.  The Court held (7-2) that the statute's use of "specifically prohibited by law" meant statutory law, rather than regulations.  The Court reasoned that Congress had used "law, rule or regulation" throughout the whistleblower law, but limited the disclosure exception only to "law."

 

Court of Appeal: Employee Must Initiate Interactive Process

Tanya Milan worked for the city of Holtville's water treatment plant. After a work-related injury, she began a leave of absence. During the leave, her workers' compensation doctor decided she would not be able to perform her duties. She never requested an accommodation or contacted her employer to state her intention to return to work. Instead, she accepted retraining benefits from the city's workers' compensation administrator and began taking courses for a new career.

The trial court awarded damages. The court felt that when the employee's doctor opined she was unable to do her job, that triggered the city's obligation to accommodate her.

However, on appeal, the court reversed. The court noted that the claim for failure to participate in an interactive process requires the employee to initiate the process:

Section 12940, subdivision (n), requires that an employer "engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." (Italics added.)

* * *

Importantly, by its terms section 12940 subdivision (n) requires that the employee initiate the process. (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 62, fn. 22.) On the other hand, "no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith."

Here is the money quote:

In short, where, as here, an employer has not received any communication from an employee over a lengthy period of time, and after the employee has been given notice of the employer's determination the employee is not fit, an employer is not required by section 12940, subdivision (n), to initiate any discussion of accommodations. Imposition of such a duty under those circumstances would contradict the express terms of the statute which requires that the employee initiate the interactive process.

Although this case does not require it, from a preventive standpoint, it is important to document attempts to check in with employees on long term leave. Employers should also ensure it has policies requiring employees to communicate periodically regarding their status and intentions. By doing so, that bolsters the argument that the employee's failure to communicate demonstrates a lack of intention to engage in an interactive process or request accommodation.

The case is Milan v. City of Holtville and the opinion is here.

Court of Appeal: "Reasonable Accommodation" Must Be Perfectly Executed Every Time

It is one thing to grant a reasonable accommodation. It is another thing to ensure that it is implemented perfectly, every time. Hard cases make bad law. This is a combination of a sympathetic plaintiff, a big company, and a one-time event resulting in a huge verdict.

A.M. was a cashier at an Albertson's in Marin County. After receiving treatment for cancer, she needed to drink copious water. Albertson's let her have water at her station, even though it was against policy. Naturally, A.M. had to use the bathroom more frequently because of the water she was drinking. Albertson's said that she could call her supervisor and they would cover her.

So, Albertson's had granted A.M. extra breaks as an accommodation, and had implemented a system for A.M. to obtain them. The system was working, with A.M. receiving extra breaks by calling her supervisor. On one occasion, the system did not work because the supervisor was the only person who could relieve her and he was unloading a truck. A.M. had an accident at her cashier station. She went home and did not return to work for Albertson's.

According to the court of appeal, that single failure of the supervisor sufficed to be a "denial" of reasonable accommodation. The court upheld a jury verdict of $200K for that one incident. Add the plaintiff's and defense attorney's fees and sooner or later we're talking about a lot of money.

By the same argument, then, if an employee's wrist starts to hurt a few months after the employer installs ergonomic equipment, that alone is the denial of an accommodation? If a diabetic experiences low blood sugar one day, does that mean the employer's accommodation of permitting food at the work area is actionable?

If an accommodation becomes ineffective, the employer is required to engage in the interactive process to come up with a better accommodation, and grant the new accommodation. It is unreasonable to assume that an employee with a disability has a right to a perfect work environment and a guaranteed flawless accommodation, every day. The world does not work that way for anyone - with or without a disability. The issue is: did Albertson's grant her request for accommodation? Yes. Was it effective? Except for the one occasion, apparently so. Was there evidence the company intended to mistreat A.M. or only pretended to accommodate her? No. Could A.M. have filed a workers' compensation claim if she were injured by a work-related condition? Yeah, which was her real remedy here.

Again, A.M. was very sympathetic and what happened that day was truly unfortunate. But absent proof of intentional discrimination, the result of this case is that FEHA is not providing a remedy for a wrong; it is elevating individuals with disabilities above all others and exposing employers to potential liability for isolated failures.

The case is A.M. v. Albertson's and the opinion is here.

My 0.02.

Court of Appeal: Employee's Obligations re Reasonable Accommodation

Carmine Scotch worked as an instructor for The Art Institute of California - Orange County. He had HIV. The institute's accreditation standards require instructors to have certain certification and education credentials / degrees. They allow some instructors to work towards those credentials after hire.

In 2004, the institute's management prepared for accreditation audits by identifying instructors lacking the education credentials required to maintain accreditation, including Scotch. By the end of 2005, Scotch had still not enrolled in a master's program. The institute even agreed to pay for degrees obtained at a local university.

Scotch received a poor performance review in early 2006. He disputed it, claiming it was retaliation for a leave he took during the previous winter. He also disclosed to HR that he had HIV.

By mid-2006, there was a decline in enrollment. Some instructors were laid off; others were reduced to part-time. Because the institute had more instructors than work, it decided to assign only instructors with masters degrees to upper-level courses. Therefore, Scotch's hours were reduced (along with other instructors'). Ultimately, Scotch resigned.

Scotch sued for refusal to accommodate, disability discrimination, failure to engage in the interactive process and wrongful termination. The Court of Appeal affirmed the Superior Court's grant of summary judgment on all causes of action.

Most of the opinion is not new law. The court found that the course load was reduced for legitimate reasons, and that Scotch did not demonstrate pretext. But this opinion is interesting because of the court's analysis of the accommodation claim. Scotch argued that he should have been assigned a full course load despite his failure to achieve the masters degree as a reasonable accommodation. The court found:

His proposed accommodation is not reasonable under the definition we have adopted because it is not a “modification or adjustment to the workplace” necessary to enable him to perform the essential functions of his position. Unlike the employee in Jensen, Scotch was not requesting assignment from a position he could not manage to one he could. Instead, Scotch explained the limitations created by his disability were that he needed to avoid stress and he could not pursue a master‟s degree while teaching full time and fulfilling other professional development requirements—limitations addressed by AIC‟s accommodation. Scotch‟s request of priority in assignment of lower division courses does not accommodate those limitations and was unnecessary to enable him to perform the essential functions of his position.

The opinion also addresses the "interactive process." The court found that the institute did not initiate a meeting before reducing the hours and that, perhaps, a jury would find that it should have. However, the court also found that the failure to have the meeting did not require a trial. That is because the employee must identify a potential accommodation that would have been effective to recover on the cause of action:

To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. An employee cannot necessarily be expected to identify and request all possible accommodations during the interactive process itself because "„"[e]mployees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. . . ."‟" (Wysinger, supra, 157 Cal.App.4th at p. 425.) However . . . once the parties have engaged in the litigation process, to prevail, the employee must be able to identify an available accommodation the interactive process should have produced: "Section 12940[, subdivision ](n), which requires proof of failure to engage in the interactive process, is the appropriate cause of action where the employee is unable to identify a specific, available reasonable accommodation while in the workplace and the employer fails to engage in a good faith interactive process to help identify one, but the employee is
able to identify a specific, available reasonable accommodation through the litigation process." (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)

The case is Scotch v. Art Inst. of Orange Cty. and the opinion is here.