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