The 4th District Court of Appeals has reversed a 6 figure award for employment discrimination in a FEHA claim arising from a work related injury to a water plant treatment worker who was unable to return to her usual and customary job. The Court ruled the applicant failed to provide any indication to the employer over an 18 month period of time, during which she was participating in vocational rehabilitation, of an interest in returning to work with the employer.
In Milan v City of Holtville, Tanya Milan sustained an spinal injury resulting in a two level fusion with metal plate implant. 1 year after the injury, the claims administrator for the City notified Ms. Milan the medical evidence indicated she was not able to return to her job and vocational rehabilitation benefits (VR) were offer and accepted by applicant. Applicant claimed that she attempted to dispute the determination she could not return to her job but the record does not indicate how she did so. She also did participate in VR and obtain training for a new occupation in real estate. Applicant concedes she did not make any effort to contact her employer about wanting to return to work.
On March 30, 2004, approximately 18 months after the injury, the City sent notice to Milan her employment was terminated based upon medical evidence she was unable to return to work at her job and the City also had concluded it did not have any position available to offer her within her restrictions. The applicant reported she was shocked by this notice and that she continued to believe she would be able to return to work. Her physician reported in May, 2004 she could return to a job that did not involve significant physician activity “such as teaching”. Her physician testified she expressed a desire to return to work whenever he examined her. Almost a year after termination, her physician reported she could return to her job but with modifications in some of the more physical aspects of the job. However at the point the employee had already been terminated.
Ms. Milan sued under the Fair Employment and Housing Act (FEHA) alleging employment discrimination. The City argued it did not have any employment opportunities within the city to offer applicant with her restriction. The trial judge determined once the city had received the report indicating an inability to return to work, the obligation to engage in the interactive process was required. After trial, the judge awarded damages for back pay, emotional distress and general damages totaling $124,000 finding the employer’s failure to initiate the interactive process to be a violation of FEHA. The Judge refused to award reinstatement on the basis it would result in displacement of another city employee. Both parties appealed.
The Court of Appeal reversed the trial court’s determination the City had failed in its obligation to offer accommodation. The Appellate Court identified the issue as follows:
This case turns on whether the city met its obligations under section 12940, subdivision (n). 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.) An employer's failure to engage in the interactive process required by section 12940, subdivision (n), gives rise to liability under FEHA
The Court further described the obligations of the parties in terms of the employee’s initial burden and the cooperative nature of the process:
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”
The Court determined the employee (Milan) failed to meet her burden to communicate with the employer about the desire for accommodation. The Court was very critical of Milan’s failure, after receiving notice of the employer’s belief she could not return to work, to respond and advise she was still interested in continued employment. The Court further noted the plaintiff accepted and participated in vocational rehabilitation to return to a new occupation.
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.
The Court concluded in ruling the trial judge should have granted the City’s motion for dismissal and remanded with instructions to do so.
The holding in this case is a little surprising as many of us have certainly been under the belief an employer had an absolute obligation to initiate the interactive process once it has notice of a employee’s disability. The holding in this case relies on the obligation of the employee to request accommodation in order to trigger the interactive process. The Court appeared to be concerned this employee expressed to her physician about her desire to return to work but never pursued the issue with her employer even after notice of termination.
One fact not considered by the Court, but which would be supportive of the decision, is the participation in the VR process almost always begins with an exploration of whether the employee is interested in returning to the employer. It is surprising the case history makes no mention of whether the VR counselor was asked to contact the employer about alternate or modified work but the lack of such information raises the question of whether the employee made that request. This testimony could have been significant for either party and if presented by the employee that such a request was made, potentially could have changed the results in the case. The record does not even indicate if the VR counselor testified.
The employee’s participation in VR is clearly a significant fact in the Court’s analysis of this case. We no longer have that particular benefit, and employers can no longer rely on the intervention of a professional who is charged with the task of assessing if the employee is interested in returning to work for the employer. One certainly has to wonder if in a similar set of facts, but without the plaintiff’s participation in VR, the results would be the same.
While this case provides some good news for employers about the employee’s burden to at least request accommodation, caution should still be exercised in treatment of disabled employees, work related or not. Active consideration of the obligation to provide accommodation will always be the safest and best policy for an employer.
© Copyright 2010 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.