ADA & FEHA Case Law Update 2012
Dennis J. Walsh Walsh & Associates, APC
Agenda
Disability Cases within the last year re ADA and FEHA Facts, Decision and Impact
Minefields of ADA/FEHA that we encounter in defending this claims
Case Law Update – The Stats
Many MSJ Cases Mixed bag on wins and losses for
employers Good cases on whether an employee is a
QID Divergent decisions given ADA versus
FEHA Due to differences in the law
Employee Need Not Stay on Indefinite Leave When EE Cannot Work
Facts: EE could no longer meet minimum attendance requirement of the job EE took various Leaves of Absence (LOAs) before fired for failure to
return to work Decision:
Summary judgment for employer granted Under FEHA disability discrimination claim, EE was no longer a QID No failure to accomm. claim since EE was given several LOAs; no
other accommodation requests made; AND presented no evidence of any other viable accommodations allowing EE to perform her job
Impact: Substantial – Affirms that employer does not have to eliminate job
duties and that employee is not protected under ADA if cannot perform the essential job duties with or without accommodation
Failure to engage claim does not survive if no evidence of R/A at time of disability
Workplace Misconduct Caused By a Disability No Excuse to Threaten Co-Workers
Facts: EE had bipolar disorder EE was discharged for making threats to employees in the workplace EE never acted on any threats nor any evidence that EE posed an
actual threat of harm Decision:
Summary judgment for employer affirmed Under FEHA disability discrimination claim, termination for
threatening behavior even though caused by bipolar disorder was non-discriminatory basis b/c there was no adequate accommodation
Impact: Substantial – Shows the workplace behavior due to disability is not
excusable from discipline IF it is controllable Question is what if it is not controllable?
Downturn in Business was Justified Reason for Laying Off Employee
Facts: Mechanic was laid off two months after returning from medical leave No evidence that employer perceived employee as having actual or
potential physical injury upon return to work Decision:
Summary judgment for employer granted Under FEHA disability discrimination claim, business reason for
laying off EE was not pre-textual and EE’s opinion about being disabled irrelevant
No failure to engage or accommodate claims since employee never gave notice
Impact: Substantial – Allows employer to lay off employee even after
returning from leave if they are not QID and there is legitimate reason for doing so
Light Duty Accommodation for Injured Employee Must Continue Regardless of WC Rating
Facts: Injured police officer placed in light-duty desk position as an
accommodation - part of long-standing practice of LAPD Removed from light-duty job and “sent home” on disability leave and
eventually terminated due to workers’ comp. disability rating - “100% disabled”
Decision: Employer liability for FEHA disability discrimination and failure to
accommodate claims; court trial affirmed EE was a QID able to perform essential functions of light duty position Employer’s long-standing practice of accommodating determinative;
workers’ compensation disability rating not determinative Impact:
Substantial – Reminds us the WC ratings re disability are irrelevant in determining R/A
Practice of light duty may create higher standard of R/A
Employee With Injured Back Was No Longer QID
Facts: EE injured back preventing him from heavy lifting requirement of
telecommunications installer job – no other positions EE could perform available
ER repeatedly considered accommodations and evaluated other vacant positions to see if EE was able to continue working for ER
Decision: Summary judgment for employer affirmed Under FEHA disability discrim, EE was no longer a QID b/c could no longer
perform the essential lifting function of job and no R/A available Impact:
Substantial – Affirms that employer can have claim dismissed if it can be shown that employee cannot perform the EJF’s with or without an accommodation
Employer Not Liable for Firing Disabled Employee that Did Unsatisfactory Job
Facts: Employer was aware of hereditary foot and leg disability which
sometimes affected employee’s ability to visit clients’ homes Employee was disciplined over 12 years for violating unrelated
policies and was fired for documented errors unrelated to her disability
Decision: Summary judgment for ER affirmed on FEHA disability discrim Violating company policies could constitute legitimate reason for
terminating employment No FEHA disability claim on appeal for failure to argue in moving or
reply papers Impact:
Substantial – Employers have hope that they can terminate QID and get the claim dismissed if for legitimate reasons unrelated to the disability per se
Employer Not Required to Adjust Full-time Work Requirement for Injured EE
Facts: Persistent back injury resulted in work restrictions, LOAs, and
intermittent part-time hrs. Employee could no longer work full-time
Decision: Summary judgment for employer granted Under FEHA no disability discrim claim b/c EE was no longer a QID No FEHA failure to accommodate claim since could not meet prima
facie disability discrimination case, which was fatal to claim No FEHA failure to engage since ER cannot be expected to engage
EE until EE was released to work with or w/out limitations; no duty to engage in process guaranteed to be futile
Impact: Substantial – Affirms that employer does not have to create a part
time position when EJF’s require full time position Full time work is an essential job function
Dyslexic Employee Fired by Employer for Poor Work Performance Raised Issue of Fact Re Pretext
Facts: Pro Se plaintiff former clerical EE with known Dyslexia was fired for
poor work performance, including taking credit for other EE’s work EE’s supervisor said disparaging remarks about all her EEs,
including all are “handicapped by one form of stupidity or another” Decision:
Summary judgment for employer denied Under rehabilitation act disability discrimination claim, fired EE
offered sufficient evidence to raise a genuine issue of material fact that stated reason was pretext and defeat summary judgment
Sufficient evidence categories: 1) supports finding that termination was motivated by supervisor’s bias against the disabled, and 2) coupled with evidence of her glowing performance ratings
Impact: Moderate – Affirms the long standing rule of “watch what you say to
who”
Labor Management Relations Act did Not Preempt FEHA Claims
Facts: ER removed case from state court to federal court as preempted by
the labor management relations act Employee’s FEHA disability discrimination and failure to
accommodate claims went back to state court from removal motion filed by ER in federal district court
Decision: Employee’s remand motion back to state court granted by DC Labor management relations act did not preempt FEHA disability
discrimination or failure to accommodate claims Employee’s claims did not depend on interpretation of the collective
bargaining agreement governing his employment Impact:
Nominal – Affirms limit of pre-emption arguments even when relying upon a CBA
ADA Did Not Require School District to Grant Teacher’s Request to Teach without Certificate
Facts: Board denied request to teach w/out certification after teacher did not
satisfy 6 semester hours due to disability onset of a “major depressive episode” rendering her unable to take any college courses “during the summer before the deadline for her continuing professional development”
Teacher had 5 years to complete the certification requirements Decision:
Summary judgment for employer affirmed Under ADA employee was no longer a QID b/c no longer met certification
prerequisites of job Teacher could perform essential functions of job but ADA did not require
accommodations to help her meet the prerequisites Impact:
Substantial – Affirms that employer doe not have to accommodate someone whose disability prevents them from being qualified for job
Fact Issues Existed as to Whether EEOC Conciliated in Good Faith Before Filing Suit
Facts: Disabled fast food worker terminated after demotion, pay reduction and failure to
return to work EE filed EEOC claim; EEOC represented EE & entered into settlement discussions
with ER for 9 minutes before discussion ended; ER claimed EE never disclosed his disability and that EEOC never disclosed exact nature of EE’s disability
Decision: Summary judgment for employer on ADA disability discrimination denied b/c the
“EEOC’s evidence is sufficient to show a genuine issue of material fact as to whether the EEOC conciliated in good faith”
The Fed. District Ct. (Eastern District) held that Title VII’s conciliation requirement is a precondition to suit; it is not jurisdictional despite former 9th circuit decision
Title VII affords the EEOC substantial deference in discharging its duties so the court “will not wade into the substance of the parties’ negotiations” nor will it 2nd guess the EEOC’s negotiating strategy
As long as ER was given an opportunity to respond to all charges and to negotiate settlement then the EEOC fulfilled its statutory duty to conciliate in good faith
Impact: Nominal – Court does not agree that this is a jurisdictional issue or one of
importance
Parties Settled ADA and FEHA Disability Discrimination Claims
Facts: LA County MTA settled with Plaintiff on ADA and FEHA disability
discrimination claims pursuant to settlement CCP § 998 offer After settlement accepted, plaintiff moved for attorney fees under
ADA and state statutes Decision:
Trial court’s ruling for defendant MTA affirmed An offer of a monetary compromise that excludes “costs” also
excludes attorney fees The offer expressly provided that each party would “bear their own costs”
but contained no provision regarding “attorney fees.” The trial court denied the P's motion for statutory attorney fees on the ground they were part of the “costs” the plaintiff agreed to bear.
Impact: Substantial, but hopefully irrelevant – This is the “new stat offer” so
beware
Triable Fact Issues Exist Whether EE was Qualified and ER Failed to Engage
Facts: Oil worker injured foot while on military leave Evaluated by ER’s medical examiner who determined EE’s work restrictions, partly
by misinterpreting armed services retirement ppwk. – believed no standing for “long periods of time” = no standing > 10 min. at a time
ER fired EE after only 2 communications with EE to find other suitable jobs Decision:
Summary judgment for employer denied ADA genuine issues of material fact existed whether EE was QID; able to perform
essential functions of vacant positions; and whether ER’s assessment of EE’s physical limitations was accurate since ER relied on faulty medical examiner assessment and parties dispute whether medical examination took place
ADA and FEHA triable issues existed whether ER failed to engage based on evidence ER adequately consulted with EE to ascertain his precise job-related limitations
Only unilateral discussions w/EE - “no cooperative dialogue” Impact:
Substantial – illustrative of how courts will not allow employer to blindly follow doctor reports without discussing limitations with the employee
ER Policy Refusing to Hire Untruthful Applicants Complete Defense Against Disability Claim
Facts: ER learned after former seasonal EE sued for wrongfully failing to
rehire him and for discriminating against him for a back injury that he was an undocumented worker who used someone else’s SS#
ER has policy refusing to hire any applicant who submits false eligibility documentation
Decision: [CA Sup. Ct. GRANTED Petition for Review] Summary judgment for employer affirmed Misuse of SS# barred former EE’s FEHA failure to accomm. &
engage claims Unclean Hands Doctrine barred former employee’s claims too
Impact: Substantial – Affirms that employer policy against false information
will trump disability – will be interesting to see how supreme court looks at this issue
9th Circuit held that CA Issue Preclusion Prevented it from Deciding FEHA Perceived Disability on Merits
Facts: Police officer fired twice during longtime employment for violating
policies, the last policy violation for using department-issued gun to try to kill herself sustaining gun wounds to face
Jury verdict for employer on FEHA perceived disability discrimination claim in state court
EE filed same exact FEHA perceived disability claim in federal court, which rejected her lawsuit since same theories were litigated in state proceedings
Decision: 9th Cir. affirmed Fed. Ct. dismissal of EE’s case without prejudice CA principles of issue preclusion prevent 9th Cir. reaching merits
Impact: Moderate – Clearly shows that you cannot try to double dip
What if the second lawsuit was an ADA case and not a FEHA case
Unconscionable Arbitration Clause does Not Govern Employment Relationship
Facts: Employer’s contract contained arbitration provisions with high
degree of both procedural and substantive unconscionability Decision:
Affirmed trial ct.’s denial of ER’s petition to compel arbitration of EE’s FEHA disability discrim., failure to accomm. & engage claims
Procedural Uncon.: Arbitration provision failing to attach arbitration service rules was unconscion. so did not govern EE’s employment
Substantive Uncon.: Arbitration provisions deviated from FEHA by authorizing atty fees & costs to prevailing ER w/out requiring finding EE's claims were “frivolous, unreasonable, or in bad faith”
Impact: Moderate – Affirms that employer must be careful in drafting
mandatory arbitration agreements
ER might be Liable for Laying Off Pregnant EE Under CA Pregnancy Disability Leave Law
Facts: Employee took unpaid leave past the four (4) months of protected PDLL
leave; employee laid off while on leave Decision:
Summary judgment for employer denied on CA Pregnancy Disability Leave Law (PDLL) Claim
Under PDLL material issues of fact existed whether employee was covered as disabled at the time she was laid off
ER showed evidence doctor stated EE was disabled until 02/20/09, and was not on pregnancy disability on 03/17/09, date of her lay off
EE showed evidence ER and she “agreed that 05/18/09 would be the date of plaintiff’s reinstatement” from leave
Impact: Moderate – Proper communication and understanding of leave dates
is critical and this could have been easily avoided
Employer Policy Requiring Explanation of an Employee’s Sick Time Requests Resulted in Class Action Lawsuit
Facts: National retail employer had attendance policy, eventually
rescinded, that required every employee to provide a doctor’s note with an explanation for sick time off requested
Class representative was fired for not providing nature of illness Decision:
Summary judgment for employer denied Employer attendance policy requiring doctor’s note with
explanation for every sick day request might violate ADA absent a showing that policy was job-related and consistent with a business necessity
Impact: Moderate – Employee is not required to disclose the nature of the
disability But we potentially see a new area for class action lawsuits against
employers
Employer Successfully Removed Disability Discrimination Case to Federal Court
Facts: Restaurant manager was ridiculed by direct supervisor after asking for a
companion dog as an accommodation for her anxiety disorder Employer denied proposed accommodation; HR and supervisor interviewed
her about disability; after ER met with EE about her work policy violations where EE again mentioned need for work accommodations, ER suspended and then fired her
Decision: Employer’s removal of FEHA disability discrimination and other claims to Fed.
Ct. successful (EE from CA; ER from Nevada) Employee’s remand denied b/c supervisor was deemed to be a
“sham/fraudulent defendant” for purposes of diversity determination EE failed to exhaust administrative remedies against supervisor since she did
not file harassment claim on DFEH or EEOC forms and b/c harassment claim did not reasonably relate to the disability discrimination claim
Impact: Minimal– Facts of the case don’t sound so promising for the ER
School Custodian’s Temporary Foot Injury Determined Not to Be a Disability
Facts: School custodian had foot injury for 3 months causing inflammation Employee resigned after being denied his accommodation request
and instead was given more work to do Decision: [SLIP COPY publication is TBD]
Summary judgment for employer granted Under ADA disability discrimination claim, 3 month foot injury was
temporary and did not “substantially limit” his ability to walk Employee’s family and medical leave act claim survived
Impact: Moderate – Under ADA temporary injuries do not make you QID Not so under FEHA?
Employer’s “Harsh” One Strike Rule Against Drug Use Not Disability Discrimination Under ADA or FEHA
Facts: Employee was a rehabilitated drug addict and recovering alcoholic
that wanted to work for employer after failing drug test years ago Defendant collective bargaining agent had policy that refused to
consider anyone for hire that ever failed its drug test Decision:
Summary judgment for employer affirmed Under ADA and FEHA, the one-strike rule did not facially
discriminate against recovering or recovered drug addicts since it eliminates all who test positive whether addicts or recreational users; only focused on whether someone could pass drug test
One-strike rule did not have disparate impact on recovered addicts Impact:
Interesting – Shows that the courts do not want to extend disability rights to drug users other than what is already in the law
Wal-Mart May Be Liable Under UnRuh Act for Denying EE Disabled Parking Spaces Access
Facts: Longtime disabled employee of Wal-Mart denied access to disabled parking
spaces and supervisor threatened to fire EE if parked there both during work and when shopping as customer
Employer removed state ct. action to fed. ct. Decision:
Employer’s motion to dismiss Civil Rights UnRuh Act Claim denied b/c EE pled sufficient facts to meet 4 yr. SOLs by providing exact dates manager engaged in unlawful business practice by threatening to fire EE if he parked in any of the disabled parking spaces
Employer’s motion to strike denied b/c court proceeded with an abundance of caution and facts pled supported claims
ADA and FEHA claims dropped by State Ct. based on finding that EE failed to exhaust admin. remedies, however Fed. Ct. rec’d. sufficient explanation from DFEH that computer error caused delay in filed claims
Impact: Minimal – Procedural decision seems routine, but the facts as alleged appear very ugly!
Disability Minefields: Agreeing on the Essential Job Duties
The Written Job Description The frequency and duration of the duties
Matching up the medical restrictions with the proper essential job duties And agreeing upon it
Get clarification if disagreements exist Can’t determine accommodations without clear
understanding by both sides of specifics of the restrictions
Disability Minefields: Agreeing on the Essential Job Duties
What if the employee disagrees with the JFA Doctor verification of functional limitations is permissible
Discussion of doctor reports re limitations is acceptable
Do not blindly rely upon WC doctor reports What if the employee disagrees with their doctor What if the doctors disagree about the condition
of the employee
Disability Minefields: What Are the Functional Limitations?
Dealing with Workers’ Comp terminology for job restrictions “No heavy lifting” “No repetitive bending, stooping, etc.” “Prophylactic lifting restriction” “TTD” “Part-time work” “Stress free environment”
Need to have clear understanding of these terms Do they impact essential job duties?
Disability Minefields: Fitness for Duty Exams
Can be a blessing and a curse Pick and choose the right time to get one Must be a good reason for doing so
Give definitive instructions on what you need from the FFD doctor Confirm in writing
Provide FFD doctor with all information necessary Past medical records, job description
Have HIPPA release from employee
Disability Minefields: Meeting with the Employee
It’s the “Interactive Process” not the “Unilateral Process” Make sure you seek their input or lack thereof
Don’t make any decisions during the last meeting Even if your mind is all ready made up
Be Prepared Have all docs re vacant positions and minimum
quals at the meeting
Disability Minefields: Trying to Accommodate
Two steps: Can I accommodate to existing position? How about alternative vacant positions?
Do you really want to accommodate this employee?
Are you prepared to discuss all possible accommodations? Have you done your homework?
Disability Minefields: Temporary/Light Duty Positions
Not required under ADA/FEHA Work Comp related to reduce costs
How do they affect your duty to accommodate? How do you handle the employee that wants the
light duty position to become permanent?
Disability Minefields: Documenting the Process
All or nothing Emails are discoverable!
Be careful what you say Have standardized forms to use
Letters to doctors Meetings with employee Your thought process re accommodation
Disability Minefields: Proper Communication
With the employee Even during Workers’ Comp injury
Between Risk Management and HR With the TPA on the Workers‘ Comp Claim
They are not advisors on the ADA/FEHA issues Between WC attorney and Employment Attorney Be Proactive
Disability Minefields: Failure to Engage in IP
The New Catch All Claim Reasons:
Ignoring employee request Ignoring employee restrictions Ignoring change in employees restrictions Ignoring employees complaints about being able to
do the job Within the restrictions With the accommodations
Disability Minefields: Problems that Arise
The employee that does not agree with the FFD restrictions or lack thereof
Know ALL of the employee’s qualifications for vacant positions
Denying accommodations that have been given to others
Policies and Practices that violate ADA/FEHA Allowing employee right to use ALL unpaid
leaves available
Case Citations McCarthy v. R.J. Reynolds Tobacco Co.,
2011 WL 1740599 (E.D. Cal. May 4, 2011). Wills v. Superior Court,
194 Cal. App. 4th 312 (2011). Holtzclaw v. Certainteed Corp. ,
795 F.Supp. 2d 996 (2011). Cuiellette v. City of Los Angeles,
194 Cal. App. 4th 757 (2011). Dept. of Fair Employment and Housing v. Lucent Technologies, Inc. ,
642 F.3d 728 (9th Cir. 2011). Earl v. Nielsen Media Research, Inc.,
658 F.3d 1108 (9th Cir. 2011). Quinn v. U.S. Bank NA, et al.,
196 Cal. App. 4th 168 (2011). Jackson v. Simon Property Group, Inc.,
795 F.Supp.2d 949 (2011). McCoy v. Dept. of Army,
789 F.Supp.2d 1221 (2011). Robles v. Gillig LLC,
771 F.Supp.2d 1181
Case Citations (cont.) Johnson v. Bd. of Trustees of Boundary Cnty School Dist. No. 101,
666 F.3d 561 (9th Cir. 2011). U.S. E.E.O.C. v. Alia Corp.,
2012 WL 393510 (E.D. Cal. Feb. 6, 2012). Martinez v. L.A. Cnty. Metropolitan Transp. Authority,
195 Cal. App. 4th 1038 (2011). Kirbyson v. Tesoro Refining and Marketing Co.,
795 F.Supp.2d 930 (2011). Salas v. Sierra Chemical Co., [review granted by Cal. Sup. Ct.:
264 P.3d 33] 198 Cal. App. 4th 29 (2011).
White v. City of Pasadena, 671 F.3d 918 (9th Cir. 2012).
Mayers v. Volt Management Corp., 203 Cal. App. 4th 1194 (2012).
Fu v. Walker Parking Consultants, 796 F.Supp.2d 1148 (2011).
U.S. E.E.O.C. v. Dillard’s Inc., 2012 WL 440887 (S.D. Cal. Feb. 9, 2012).
Case Citations (cont.) Pasco v. Red Robin Gourmet Burgers Inc.,
2011 WL 5828153 (E.D. Cal. Nov. 18, 2011). Apostol v. Castro Valley Unified School District, et al.,
2011 WL 5104361 (N.D. Cal. Oct. 27, 2011). Lopez v. Pacific Maritime Association,
657 F.3d 762 (9th Cir. 2011). Hardin v. Wal-Mart Stores, Inc., et al,
813 F.Supp.2d 1167 (2011).
ADA & FEHA Case Law Update 2012
Dennis J. Walsh Walsh & Associates, APC