Dedekian v. Central Unif. School Dist.

Filed 10/24/07 Dedekian v. Central Unif. School Dist. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge.

Robert J. Rosati for Defendant and Appellant.

Barsotti & Baker and K. Poncho Baker for Plaintiff and Respondent.

-ooOoo-

Defendant Central Unified School District (CUSD) appeals from a judgment entered in favor of plaintiff Pauline Dedekian (Dedekian) after a court trial on her claim that CUSD violated the California Fair Employment and Housing Act (FEHA) (Gov. Code,  12900 et seq.^[1]) when it failed to engage in a good faith interactive process to identify reasonable accommodations of her disabilities and awarding Dedekian attorney fees. On appeal, CUSD contends (1) the trial court erred by failing to find CUSD was not required to engage in the interactive process as a matter of law; (2) the trial courts decision is not supported by substantial evidence; and (3) the trial court abused its discretion in determining the amount of attorney fees.^[2] As we shall explain, we will affirm both the judgment and the post-judgment order awarding attorney fees.

FACTS

In 1997, CUSD hired Dedekian as a counselor at Central High School East. Before coming to CUSD, she had worked as a counselor at Hoover High School and a first grade teacher. In October 1998, Dedekian suffered a shoulder injury while on the job. After her first shoulder operation in August 1999, Dedekian was told to avoid repetitive movements above the shoulder and not to lift heavy objects. In April 2001, she had a second shoulder surgery.

In March 1999, Dedekian became interim principal of Central High School West (Central West). Dedekian became the permanent principal of Central West for the 1999-2000 school year, and continued in that position for the 2000-2001 school year. Dedekian did an outstanding job her first two years as principal. Mary Lozano was Dedekians secretary at Central West. They had a wonderful relationship and working conditions. In February 2001, Lozano was diagnosed with cancer. The following month, she went on a leave of absence.

The 2001 Fall Semester

At the beginning of the 2001-2002 school year, Lozano attempted to return to work on a half-time basis, but she was unable to perform her job. About two weeks after her return, Geoffrey Garratt, who was then CUSDs assistant superintendent for personnel and in charge of providing accommodations to disabled employees, placed Lozano on a leave of absence until she was completely cleared by her doctor.

In August 2001, Kasey Burton, who was Central Easts attendance secretary, was brought over to Central West to became Dedekians temporary secretary. Burton recommended Dedekian institute a sign in/sign out procedure for classified employees. Dedekian found out this was a district-wide policy and implemented it, which required Burton to keep track of the classified employees on campus. Some of the classified staff were unhappy with the procedure and did not want to comply with it.

After this, Lozanos husband, Carlos Lozano, who worked as a campus liaison at Central West^[3], confronted Dedekian and told her his wife was upset that she was changing the way things were done. A day or two later, another employee told Dedekian that Lozano had called and told her she was upset with Dedekian because she was changing everything. Based on what the other employee told her, Dedekian believed Lozano was disclosing confidential information to the other employee and wanted to try to get Dedekian fired. Dedekian never asked Lozano directly whether these things were true. A teacher recalled Dedekian referring to Lozano as an fing bitch nearly every time she said her name.

Dedekian admitted she used vulgar or profane language, such as the f word, shit and perhaps damn, maybe once a week during the 2001 fall semester while in meetings with her confidential staff and at times in private conversations.^[4] Dedekian did not recall using vulgar language in front of students, parents or teachers. Diana Arthur Haskins, a counselor at Central West at the time, testified Dedekian used vulgar language all the time in the almost daily administrative meetings held in Dedekians office. Arthur Haskins believed students who were waiting outside Dedekians office could hear the vulgar language, and she and others warned Dedekian not to talk so loudly. Arthur Haskins remembered several occasions where Dedekian used vulgarity outside of administrative meetings.

Dedekian Disciplines Various Employees

On October 8, 2001, Dedekian told Carlos, in front of other administrators, that he was not doing his job and he would no longer be a liaison at Central West. Dedekian placed Carlos on administrative leave and told him he was fired, but she had not consulted Garratt or the district office before doing so. Kevin Wagner, a vice principal at Central West, walked Carlos off campus and took his keys.^[5] Carloss union representative believed what was done to Carlos was against contract rules so he and Carlos met with Garratt and they agreed Carlos would return to work, but he would work in the agricultural center. Upon his return to work, Dedekian gave Carlos a series of written reprimands, which he believed were unjustified. Dedekian was extremely afraid of Carlos and asked Garratt to transfer him to a different school, but Garratt said he could not transfer Carlos because of seniority issues.

During the fall semester, Dedekian gave letters of reprimand to vice principal Brooke Campbell and English department chair Virginia Taylor. These employees were upset with Dedekian, as were their friends. Dedekian discussed the reprimands with Garratt before issuing them.

Ellen Arrigoni, a finance clerk at Central West during the 2001-2002 school year, raised a question during a meeting of classified staff about an incident where no one was in the front office to assist a parent. According to Arrigoni, Dedekian was very upset and appalled that she would bring up something like that. After the meeting, Dedekian met with Arrigoni privately and said Arrigoni had embarrassed and humiliated her. Arrigoni was afraid of Dedekian because she had a way of belittling people.

The Atmosphere at Central West

In Wagners opinion, during the fall of 2001, employees were dividing into warring camps. He thought Dedekian was antagonistic and emotionally violent toward subordinates, vindictive in certain situations, that things were becoming personal and people such as Arrigoni, Lozano, and Carlos were afraid of and mistrusted Dedekian. According to Wagner, the problems were mainly with the office staff, vice-principals, and counselors, although polarization also developed among the teachers. Wagner believed morale was very bad, especially in the office. Instead of working to resolve conflicts, Dedekian took sides and became more adversarial. Wagner thought Dedekian lost her cool with certain people, which could be construed as abusive. Wagner also felt Dedekian showed favoritism to certain employees, specifically Burton and Amanda Crenshaw, who was a special education instructional aide working primarily in the front office answering phones and Burtons daughter, and Dedekian shared confidential personnel information with people who were not confidential employees.

The Superintendent Hears Complaints

Larry Powell became superintendent of CUSD in September 2001. Powell began receiving inquiries or complaints from Central West staff members in mid to late October 2001. Powell met with four of the complaining employees in late October or early November, and learned they felt intimidated, they complained of low morale, and they were concerned about unequal, unfair treatment. Powell began investigating the situation at Central West. Arrigoni eventually met with Powell and told him she was very frustrated, she didnt know who she could talk to, and it was difficult in the office. According to Arrigoni, Powell assured her they were looking into things and he hoped things would get better.

Powell Meets With Dedekian

On December 11, 2001, Dedekian met with Powell at her office at Central West. Powell handed Dedekian a memorandum from him, which stated she had been given a letter from Garratt containing several directives regarding Central West personnel which she must implement and fully support.^[6] The memorandum also directed Dedekian to do everything she could to make Lozanos return a positive and pleasant experience, explained that Powell was very concerned about the morale of Central West and told Dedekian to make sure that there is no intimidation, no ethnic slurs or jokes, or profane language used at the school or during any school activities, especially by any adult employed by the district. Dedekian was unaware of Garratts letter and told Powell she did not know what he was talking about.^[7] This was the first time Dedekian learned that Lozano would be returning, which shocked her because Garratt had led her to believe Lozano would not be her secretary and she believed Garratt knew Lozano had been calling people almost every day trying to get stuff on her to get her fired.

Powell told Dedekian that half of [her] school had been coming in droves to complain about her and she created the low morale at the school. According to Dedekian, Powell yelled at her during the meeting and told her he was going to demote her to an elementary teaching position. When Dedekian questioned him about that, he responded Well, what about a janitor? I can make you a janitor just like that.^[8] Powell also told Dedekian he was getting complaints about her mood swings. Dedekian told Powell about her shoulder injury and that she had been taking a lot of pain medication, which had a lot to do with her mood swings. Dedekian offered to give him a list of her medications along with their side effects, but Powell said he did not want it. Dedekian told Powell she had a disability and asked him to treat her the same way the district had treated Lozano. Powell did not respond to this request. Powell believed Dedekian was having a difficult time with her fathers recent death, so he offered to mentor her as a way of helping her get through the next few months, and told her they would meet for mentoring sessions twice a month beginning in January. Powell also believed Dedekian was unwilling to take responsibility for what happened on campus.

After this meeting, Dedekian wrote Garratt and expressed her concern that Lozano would not be able to fully perform her duties upon her return as she would need to leave work early for treatment, and stated her emotional, mental and physical well-being were being affected. It was obvious to Garratt that Dedekian was stressed that Lozano would not be able to work full time. Over the Christmas break, Dedekian wrote another memorandum to Garratt which led Garratt to believe Dedekian had lost it and gone off the deep end mentally. At this point, Dedekian was 180 degrees from where she used to be. Garratt attributed Dedekians instability to her fathers death the previous October, which caused everyone to give her more latitude. Garratt believed Dedekian might, for the first time in three years, be over her head. Garratt did nothing, however, because it was the Christmas break and he expected that Dedekian, as a high school principal, should be able to handle the situation.

In a January 9, 2002, memorandum, Powell thanked Dedekian for recognizing areas that needed improvement, that one of the key things they discussed was the ability to maintain an even keel when it comes to leadership, and if that area improved, other areas of concern would also improve. Powell also acknowledged hearing positive things about Dedekians improved performance. According to Garratt, Powell told him Dedekians mood swings were creating a problem.

Crenshaws Complaint

Lozano returned to work in January 2002. On January 14, 2002, Crenshaw presented Wagner with a formal written complaint against Lozano, who was her supervisor. Crenshaw believed Lozano was singling her out by falsely claiming she committed policy violations and meeting with Wagner outside Crenshaws presence and without confronting her first. Crenshaw stated that unless the situation ended, she would continue to feel uncomfortable or harassed and would exercise my right to take legal action. In addition to the written complaint, Crenshaw had been coming in to see Garratt on an almost daily basis crying and complaining.

Dedekian Takes a Leave of Absence

After this, Dedekian submitted a January 16, 2002, memorandum to Powell, Garratt and the school board requesting a leave of absence due to work-related stress. Dedekian stated that her leave of absence would begin on January 17 and hopefully end sometime in March, and she would contact them when her psychologist, psychiatrist and doctor released her to emotionally and physically return to work. Dedekian also submitted a workers compensation claim in which she stated she suffered injury to her psyche as a result of repetitive stress of employment, a doctors note which stated she had started taking medication for stress and depression in May 2001, and a memorandum in which she explained that she could not work with Lozano for various reasons and had told Garratt she would be forced to take a leave of absence if she had to work with Lozano. Dedekians request for a leave of absence was granted and Wagner became the acting principal of Central West.

Garratt did not do anything between this time and May 2002 to confirm or deny Dedekians reported depression, although he was aware she had filed a psychological claim and her shoulder injury claim was still open and active. Garratt never requested information about Dedekians medical condition from CUSDs workers compensation attorney, who represented CUSD in Dedekians workers compensation case.

CUSD Hires an Investigator

According to Garratt, until Dedekian left in January, CUSD was unaware of just how deep things were in terms of bad morale. Garratt and Powell agreed the situation at Central West had deteriorated to the point that they should obtain a climate study by having a private investigator talk to employees. Consequently, on January 19, 2002, CUSD hired a private investigator, who was directed to investigate Crenshaws complaints in terms of a hostile work environment.

On February 28, 2002, Dedekian received notice that she may be released, reassigned or laterally transferred from her current position at the end of the 2001-2002 school year. The Education Code requires administrators be notified of possible reassignment by March 15, with final decisions to be made by June 30. The notice was provided to all administrators at CUSD except one principal. No decision had been made at that time as to whether Dedekian would return as principal.

Dedekian Requests Accommodations

On April 2, 2002, Garratt wrote Dedekian notifying her that if she intended to return to work at that time, she needed to contact him and provide a doctors note indicating a full or partial release for work and addressing any needed accommodations. On April 8, Dedekian wrote Garratt, stating that she and her psychologist had been discussing the possibility of returning to work. Dedekian asked to meet with Garratt to talk about the following conditions that would accommodate my physical and emotional well-being, thereby, making my return to work possible: (1) that Mary and Carlos Lozano be removed from Central West; (2) the ability to terminate/transfer personnel on my administrative team at the end of the school year; (3) receive support in conducting all duties as principal, including the right to discipline employees; (4) uphold her due process rights; (5) that she be allowed to arrive late and leave early from work, although she would put in an eight hour day, due to medications she was taking for her shoulder injury, the side effects of which were extreme drowsiness and fatigue and which her physician could verify; (6) she would not be terminated, reassigned or demoted through the end of the 2002-2003 school year, unless mutually agreed upon; and (7) if possible, Burton would be her confidential secretary. Dedekian stated she would be waiting to hear from Garratts personal secretary about setting up an appointment with Garratt. While Garratt considered many of the requests unreasonable, he believed the requests for support, due process rights, and a flexible work schedule were reasonable. Dedekian never heard from Garratts personal secretary.

The Investigators Report

On April 11, 2002, the private investigator issued a report of his investigation. The investigator found the environment in Central Wests administrative office had been impacted since September 2001; the work environment had been described as stressful, chaotic, tense, and there had been breaches of confidentiality and secretive meetings; and the impact was caused when personnel and procedural changes occurred in the administration office. The investigator observed a division in the work force, with one side supportive of Dedekian and her personnel changes, while the other side felt underprivileged and that some were allowed to come and go without accountability. The investigator noted the disciplinary actions against Carlos and Campbell were seen as attacks on individuals who were not on Dedekians side, certificated employees felt the new resource teacher and lead liaison were inappropriately included in administrative meetings and confidential employee reporting, and workers reported the lack of Dedekians presence.

The investigator also concluded there did not appear to be an appropriate accounting or pre-approval of compensatory time Burton had taken between August 22 and December 4. In addition, Burton had missed two weeks of work after being injured in a motorcycle accident and a few days of work after a surgery, but she never claimed any sick leave on her time sheets, which Dedekian had signed. Burton reported Dedekian excused her absences without payroll deductions or use of sick or personal leave, and the investigator did not find any significant reason for this. According to Garratt, this was inappropriate and a misuse of public funds. Dedekian also authorized Burton to receive full pay for nine days work over the Christmas break, even though Burton only worked part of each day at Dedekians house. The investigator also found that Dedekian had taken time off around the time of her fathers funeral on October 1, and when her son was hospitalized in December, but had not reported any sick or personal leave, or vacation, during the school year, and several workers reported Dedekian frequently arrived at work after 9:00 a.m. and left before 3:00 p.m.

CUSDs Response to the Investigators Report

After Garratt received the investigators report, he did not contact Dedekian to get her response to the allegations regarding the misuse of time. Discussions about removing Dedekian from her position began in April. Powell decided that Dedekian should not be retained as Central Wests principal based on his concerns regarding campus morale, and that Dedekian was not following procedures regarding attendance and had granted comp time to an employee during Christmas break. The school board and administration came to the conclusion that Dedekian could no longer be trusted to serve as principal because they doubted her leadership, honesty, integrity, commitment to the district, staff and students, her judgment, her ability to perform administrative and management duties and her leadership. Powell, however, did not necessarily question Dedekians commitment to the district, staff or students, since he thought she wanted to do a good job.

Powell considered demoting Dedekian to an administrative position, such as head counselor, since she was good with computers and scheduling, but did not feel that placing Dedekian in other positions would have added to the positive situation at the schools to which she might have gone, since it would not have been a good mix of people.^[9] He thought she would have the least pressure in a classroom with 20 students rather than in an administrative role, so he decided to put her in an elementary classroom. At that time, Powell was aware Dedekian had been diagnosed with depression and was on medications, but her depression did not play a part in deciding where to place her. He did not discuss with Garratt or the board whether any accommodation was required. Powell acknowledged a teaching position has less flexibility in arrival and departure times than an administrative position, and that normally a flexible schedule would not be an accommodation for a teaching position.

Although Garratt believed CUSD had cause to terminate Dedekians employment, Powell did not consider firing her because she had rights to a teaching position, he did not think her conduct rose to that level, and her evaluations when she worked in other positions were positive. High school principals do not have tenure as principals and serve at the boards discretion. If a principal is removed, he or she retains job rights as certificated personnel. If CUSD had attempted to fire Dedekian, it would have cost the district between $200,000 and $250,000, and the district did not have the money that year for a termination hearing. According to Garratt, in the past, if the district really thought someone needs to go, it is the point where they usually resign. Powell recommended to the board that Dedekian be transferred to an elementary teaching position. Based on the recommendations of Powell and Garratt, and Dedekians poor performance and misconduct, the board decided to reassign Dedekian to an elementary teaching position.

CUSDs Response to Dedekians Request for Accommodation

Garratt responded to Dedekians April 8, 2002, letter by sending her a letter on May 6, which legal counsel drafted but Garratt signed. The letter stated that, with the exception of flexibility in her work hours due to the medications she was taking, Dedekian appeared to be conditioning her return to work on matters that had nothing to do with her current medical conditions and were not medical restrictions that would enable her to perform her job, which only a properly licensed physician could impose. The letter further stated CUSD would evaluate the restrictions once it received medical verification; with the exception of her shoulder injury, CUSD did not consider her to be permanently disabled; CUSD would honor any feasible restrictions her physician imposed while she continued to collect temporary disability benefits, but permanent accommodations would not be assessed until she was declared permanent and stationary or otherwise exhausted her paid leaves; and Garratt would be happy to meet with her to discuss her concerns. At trial, Garratt explained that CUSD considered her shoulder injury to be permanent.

On May 9, 2002, Dedekians psychologist, Dr. Michael Kesselman, released Dedekian to return to work without restrictions starting May 15, 2002. Dr. Kesselman advised that Dedekians symptoms would be much less likely to return to the point of disability should the conditions outlined in her April 8, 2002 letter be acknowledged as best as possible. After receiving this letter, Garratt did not discuss with Powell what accommodations Dedekian would need because Dr. Kesselman did not state exactly which accommodations were required.

Dedekian called Garratt and asked him if they could meet to discuss things. Garratt told Dedekian he had been substituting one week for a principal who was out on maternity leave and he asked Dedekian if she would fill in for two weeks. Dedekian told Garratt she wanted to think about it and would call him back. At this point Garratt was still trying to salvage Dedekian and he saw this as an opportunity for her to be in a position outside the high school. The board, however, would not consider this as an option and refused to discuss it ever again. According to Garratt, the board was aware of Dedekians shoulder injury, but he did not advise them of her mental condition. Dedekian eventually called Garratt back and told him she had spoken with Dr. Kesselman and they felt she was not emotionally ready to handle such an assignment. Dedekian again asked if they could meet to discuss things, but Garratt refused, saying that Powell had nothing to discuss with her.

Dedekian Is Reassigned

At the end of May or beginning of June, Garratt sent Dedekian a letter, at Powells direction, which advised Dedekian her assignment for the following school year would be as an elementary school teacher and she would be receiving further information regarding her assignment. Garratt did not want to give Dedekian the letter because he was working on getting her placed at a different school in a position other than elementary school teacher. He wanted to go to the board and ask them if they would consider placing her in a principals position. Ultimately, the board did not want anything to do with that. The boards position was that Dedekian either accept a first grade elementary teaching position or nothing. A lateral transfer was not an option.

The last time Dedekian taught elementary school was when she taught first grade more than 10 years before. Prior to Dedekians reassignment, Garratt did not discuss with Powell any issue of accommodation of Dedekians shoulder or psychological injuries because CUSD never received a request for accommodation from Dedekians physician. Garratt did not tell Dedekian why she was being reassigned other than if she returned, it would be a volatile situation, and never shared with her the results of the investigation. Dedekian, however, could have requested an explanation and hearing regarding her reassignment.

After receiving the reassignment letter, Dedekian called Garratt and told him she was upset and felt like she was being set up to fail because she hadnt taught in 18 years. Dedekian asked Garratt if they could meet. Garratt said no, because the board didnt want to meet with her. Garratt did not discuss with her any accommodations she would need in the teaching position for her shoulder or whether she needed a flexible work schedule. On June 11, 2002, Dr. Kesselman sent a letter to CUSDs attorneys which stated that Dedekian was temporarily partially disabled as of June 5, that she was capable of working but not of returning to CUSD at that time, and Dedekian perceived her assignment as an elementary teacher as a set-up for failure and retaliation. Dr. Kesselman opined that Dedekian could return as principal of Central West, but he was uncertain if he would be able to change Dedekians perception to accept a different assignment, because she would likely feel it was retaliation.

On June 26, 2002, Garratt wrote Dedekian with the specifics of her assignment as a first grade teacher. Garratt advised Dedekian to contact the elementary schools principal or vice-principal and she needed to renew her multiple subjects credential because it had expired. Dedekian did not call the principal, however, because she told Garratt in a telephone conversation that she wasnt going to be able to teach elementary school.

Dedekian testified in a July 2002 deposition in her workers compensation case that she could not emotionally handle returning to CUSD as an elementary school teacher, and the only position she could return to was principal of Central West because she was a very prideful person and could not emotionally handle anything less. As of the beginning of August, Dedekian was still hoping she could return to a principals position.

On August 9, 2002, Garratt wrote Dedekian and asked her to either acknowledge in writing by August 15 that she would be reporting to her assignment as a first grade teacher or voluntarily resign. On August 13, 2002, Dedekian wrote Garratt stating that she did not wish to resign, but she believed CUSD was retaliating against her by demoting her and failing to respond to her legitimate safety concerns. Dedekian stated that if CUSD was unwilling to return her to her former position, she was ready and willing to return to an equivalent position with the approval of CUSD and her physician, and she was willing to meet with him if he did not have sufficient information to accommodate the request. Dedekian asked Garratt to contact her to let her know how he wished to proceed, and requested a 60 day leave of absence so they would have sufficient time to discuss options regarding her return to work.

According to Garratt, there were no equivalent positions available at that time, but he did not tell Dedekian that or even meet with her, since the board told him they werent interested in moving Dedekian laterally. Garratt admitted he never met with Dedekian to discuss any reasonable accommodations, although they exchanged letters and talked on the telephone at least twice about accommodations. Garratt did not respond to Dedekians letter until October 9, 2002, when he wrote her to explain he did not answer her request for a meeting because the board was not interested in a lateral move.

A few weeks after sending her August 13 letter, Dedekian began looking for a job at other districts. In October 2002, Dedekian accepted a job in Madera Unified School District as a counselor. Madera Unified made accommodations for her in her position, initially allowing her to come late and leave early on some days, and providing her with an aide to help with filing.

PROCEDURAL HISTORY

Dedekians complaint alleged five causes of action: (1) disability discrimination; (2) retaliation; (3) wrongful termination/demotion/retaliation for protesting unsafe and/or hostile work environment; (4) sex discrimination; and (5) failure to pay wages. Before trial, the second, fourth and fifth causes of action were either dismissed or summarily adjudicated against Dedekian.

At trial, Dedekian sought to recover damages under the remaining two causes of action based on five distinct theories of liability: (1) CUSD failed to reasonably accommodate her shoulder injury by not providing her with a temporary secretary in the Spring of 2001; (2) CUSD failed to engage in a good faith interactive process regarding her disabilities and accommodating those disabilities; (3) CUSD failed to accommodate her psychological disability in 2002; (4) CUSD discriminated against her by removing her as Central Wests principal at the end of the 2001-2002 school year; and (5) harassment in violation of FEHA.

The Statement of Decision

In its statement of decision, the trial court found in CUSDs favor on Dedekians claim that CUSD discriminated against her when it removed her as principal of Central West. The court explained: Whatever the merits of the various complaints and disrupted relationships with personnel, it is clear that the administration was justified in believing that [Dedekian] had lost the ability to lead the school and could no longer adequately function as principal in such a divisive environment. It is also clear that whatever her transgressions, neither the CUSD administration nor the CUSD Board of Trustees felt that Mrs. Dedekians conduct justified formal termination proceedings. The court stated it would not second-guess the legitimate exercise of CUSDs management discretion and the administration had the right to determine whether Dedekian was better suited for teaching or counseling than being a secondary school principal.

The trial court, however, found in Dedekians favor on her claim that CUSD failed to engage in the good faith interactive process required by section 12940, subdivision (n), in an effort to accommodate her or find an appropriate alternate position for her. The court explained the CUSD administration did not have an interest in exploring alternatives and instead simply decided to offer Dedekian reassignment to an elementary school teaching position they knew she was not likely to accept, and instead of following the legal requirements of section 12940, subdivision (n), Garratt and Powell acquiesced to the boards wishes to demote Dedekian whatever her disability. The court further explained that CUSD knew at least as of January 11, 2002, if not earlier, Dedekian may have been suffering both a physical and mental disability and was granted leave on that basis; CUSD had over five months to engage in an interactive process in an effort to investigate and accommodate her disability on a temporary or permanent basis; Dedekian repeatedly asked for such a process, but was refused for no apparent reason; and instead of participating in a timely and good faith interactive process consistent with the requirements of section 12940, subdivision (n), CUSD elected to pursue an intense investigation which resulted in no official action being taken, other than to demote her to an elementary classroom teaching position a position she last held in 1984. The court awarded Dedekian economic damages equivalent to three years of lost income between Dedekians earnings as a counselor in Madera Unified and the earnings she would have received as a principal, totaling $62,289, and $50,000 in non-economic damages. The court denied Dedekians other claims.

The Attorney Fees Motion

After judgment was entered, Dedekian moved for an award of attorney fees pursuant to section 12965, subdivision (b). Dedekian sought attorney fees totaling $199,873, for work performed by K. Poncho Baker, the attorney she retained on a contingency fee basis, and four other attorneys from Bakers law firm. The motion was supported by declarations of Baker, attorney Warren R. Paboojian, and a request for judicial notice, which asked the court to take judicial notice of the declarations of attorneys William Smith and Andrew B. Jones which had been filed in another lawsuit.^[10]

In his declaration, Baker stated his qualifications -- he received a juris doctorate from Hastings College of the Law in 1991, accepted an associate position with a Fresno law firm shortly thereafter, and in April 1995, began work as an associate at the law firm Sagaser, Hansen & Franson, where he was made partner in 2001. He specializes in the field of labor and employment law, and has been a frequent speaker at various employment seminars. Baker explained that he has tried employment-related cases in both state and federal court, and has been retained as an expert witness in two disability cases. In 2002, he successfully represented a plaintiff in a disability discrimination case in Madera Superior Court, where he was awarded attorney fees at an hourly rate of $250.

Baker stated that he began representing Dedekian in August 2002, while she was still employed at CUSD, and this lawsuit was filed in July 2003. During discovery, CUSD took Dedekians deposition on three separate occasions and produced voluminous documents related to CUSDs investigation into the work environment at Central West, which became the basis for a summary judgment motion filed by CUSD. An unsuccessful mediation was held before the hearing on the summary judgment motion. In preparing for trial, Baker took only one deposition, that of Wagner. Instead of taking other depositions, Baker used the depositions of other CUSD personnel that were taken in the underlying workers compensation case and statements taken during the course of CUSDs investigation.

Baker stated that true and correct copies of his firms billing history were attached to his declaration. The billing history shows the date services were rendered, a description of those services, the initials of the attorney performing the services, and the amount of time spent on each task. At the end of the billing history, the names of the attorneys who performed services are listed, as well as the total time each attorney worked on the case and their hourly rates, which for three of the attorneys were $140, $150 and $195, for another attorney, Howard Sagaser, was $250, and for Baker was $350.

In his declaration, Baker stated what the hourly rates for the other four attorneys were, as shown at the end of the billing history. As for his own hourly rate, Baker explained that he believed $350 to be a reasonable hourly rate given the community standards for employment cases. Baker explained that he had spoken with other local attorneys who advised him their hourly fees ranged from $250 to as high as $425 per hour. He also referred to Paboojians declaration, in which Paboojian stated that he had been litigating employment cases since 1991, his hourly billing rate for employment cases in 2001 was $275 per hour, he was awarded $250 per hour in statutory attorney fees in an employment case in 1999, and his current billing rate for plaintiff hourly rate employment cases is $375 per hour, which is higher than other personal injury cases due to the difficulty and risks involved in employment cases. Baker also referred to the request for judicial notice. Finally, Baker stated that he was seeking a fee enhancement of 1.5, due to the complexity and risk associated with the case.

In its opposition, CUSD did not contest Dedekians entitlement to fees, but argued her request should be reduced because (1) it was apparent from the records presented that Bakers regular rate for non-contingency fee clients is probably $200 to $225 per hour, not $350 per hour, and therefore his rate should be set in that range, (2) Dedekian prevailed on only one of the nine discreet claims she had made, therefore the fees should be apportioned between claims, and (3) an enhancement was not warranted. CUSD submitted the declaration of its attorney, who was admitted to the bar in 1983 and had practiced labor and employment law since 1984. CUSDs attorney stated that his highest billing rate for time spent on contingent fee cases involving labor and employment law was $300 per hour, his highest non-contingency billing rate for employment cases had recently been raised from $200 to $250 per hour, and in his opinion, $200 to $225 per hour was a reasonable rate for attorneys of his experience. He further stated he had reviewed the billing statements attached to Bakers declaration, which appeared to be copies of standard form billing statements for attorney time records, and it appeared the billing rate and amount had been redacted.

CUSD also made objections to the evidence Dedekian submitted. Specifically, CUSD argued (1) the declarations of Jones and Smith should be excluded because it would be improper for the court to take judicial notice of the facts contained within them; (2) Paboojians declaration should be excluded because the rate stated within it appears to be for contingent, as opposed to non-contingent, work; (3) the statement in Bakers declaration regarding what other attorneys told him about their rates should be excluded as hearsay; (4) the reference in Bakers declaration to the $350 per hour rate should be excluded as irrelevant because it refers to contingent fee work; and (5) the billing history should be excluded because the document appears to be redacted.

In Dedekians reply brief, she argued the rate of $350 per hour was appropriate based on the rates charged by Smith and Jones, but at the very least, Baker was entitled to $250 per hour, which he was awarded in 2002. Dedekian explained that the billing records attached to the moving papers simply omitted the hourly rate and amount for each billing entry, as the court determines the hourly rate, and the entries and time incurred had not been altered. Dedekian attached to the reply brief an unauthenticated billing memorandum, which in addition to the date the service was provided, the attorneys initials, the description of services, and the time spent on the task, listed also the billing rate for each service and the value of each service. Dedekian also argued apportionment of fees was unnecessary, and an enhancement was appropriate.

Based on the parties briefing and oral argument, the trial court awarded Dedekian a total of $172,893.60 in attorney fees. The court determined that the time spent was reasonable and necessary in the prosecution of the case, but the amount of fees Baker claimed was excessive. Accordingly, the court reduced Bakers hourly fee to $250, which the court found to be an appropriate lodestar amount, and based on that rate, calculated the total lodestar to be $144,078.^[11] The court then awarded a 20 percent lodestar enhancement of $28,815.60 based on the contingent nature of the litigation and the amount of time Dedekians counsel had to defer collecting his fees. The court did not specifically rule on any of CUSDs evidentiary objections.

DISCUSSION

I. Dedekians FEHA Claim

A. Standard of Review

While the trial court prepared a statement of decision, the substantial evidence standard of review applies to all express and implied findings of fact made by the court. (See SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 [The substantial evidence standard applies to both express and implied findings of fact made by the superior court in its statement of decision rendered after a nonjury trial.].) A corollary to this standard of review is that the prevailing party at trial, here Dedekian, receives the benefit of all reasonable inferences that may be drawn from substantial evidence in her favor. (E.g., Estate of Carter (2003) 111 Cal.App.4th 1139, 1154 [all reasonable inferences from substantial evidence are also drawn in favor of the judgment].) Moreover, all conflicts in the evidence must be resolved in her favor. (See Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 168-169 [On appeal, this courts review of the trial courts findings and judgment is governed by the substantial evidence rule.... Factual matters and conflicts in the evidence are viewed in the light most favorable to the prevailing party.].)

B. The Interactive Process

Section 12940, subdivision (n), makes it an unlawful employment practice for an employer to fail to engage in a timely, good faith, interactive process with the employee  to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee with a known physical or mental disability or known medical condition. Thus, when an employer has notice of an employees disability and his or her desire for accommodation, the employer must engage in the interactive process. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261 (Jensen).) The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees with the goal of identifying an accommodation that allows the employee to perform the job effectively. (Ibid., internal citations and quotation marks omitted.) An employee may file a civil action based on an employers failure to engage in the interactive process. ( 12940, subd. (n), 12965.)

For the interactive process to work, both sides must communicate directly, exchange essential information and neither side can delay or obstruct the process. (Jensen, supra, 85 Cal.App.4th at p. 261.) The requirement that an employer engage in an interactive process is triggered when the employee, or the employees representative, gives the employer notice of the employees disability and the desire for a reasonable accommodation. (Ibid.; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384 (Spitzer).) The employers duty to engage in the interactive process is a continuing one which extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. (Humphrey v. Memorial Hospitals Assn (9th Cir. 2001) 239 F.3d 1128, 1138.)^[12]

Here, the trial court found that although CUSD knew Dedekian may have been physically and mentally disabled and Dedekian requested accommodations, CUSD failed to engage in the interactive process with her to determine effective reasonable accommodations, and instead demoted her to an elementary teaching position. Substantial evidence supports this finding. CUSDs knowledge of Dedekians disabilities is shown by the evidence that Dedekian told Powell in December 2001 about her shoulder injury and the pain medications she was taking, Garratt believed in December 2001 that Dedekian had lost it mentally, and in January 2002, CUSD granted Dedekian a leave of absence after she claimed she was suffering from a psychological injury and depression. There is also evidence that Dedekian made repeated requests to meet with Garratt to discuss accommodations, but he refused to meet. For example, in April 2002, Garratt told Dedekian if she intended to return to work, she needed a release from her doctor which should address any needed accommodations. Dedekian responded by requesting a number of conditions for her return to work, which included a flexible work schedule. Although Garratt considered many of Dedekians requests unreasonable, he recognized that this request was reasonable. At that time, Dedekian requested a meeting with Garratt to discuss her return to work, but he never set up such a meeting. Instead, Garratt wrote back and demanded medical verification of any restrictions and told her he would be happy to meet with her. After her psychologist released her to return to work and suggested CUSD acknowledge the conditions Dedekian requested, Garratt did not discuss accommodations with Dedekian or meet with her, despite her request to do so.

At the same time, discussions began about removing Dedekian from her position as principal of Central West after CUSD received the investigators report. Powell decided that Dedekian should not be retained as principal because of the morale on campus, her failure to follow attendance procedures and her grant of comp time to Burton, and the board agreed with Powells decision. Powell, however, did not believe Dedekians conduct justified terminating her employment, and he considered where to place her. Powell thought about placing her in an administrative position, such as head counselor, but did not believe any of the available positions would have been a good fit, so he decided to place her in an elementary teaching position, which he thought would place the least amount of pressure on her but which he also knew most likely would not accommodate a flexible work schedule. The board accepted Powells recommendation to reassign Dedekian to an elementary teaching position. Although Garratt hoped to convince the board to consider a lateral transfer, the board refused to consider such an option. After learning of her reassignment, Dedekian twice requested to meet with Garratt, but he refused because of the boards position.^[13]

Based on this evidence, the trial court reasonably could conclude that CUSD failed to engage in the good faith interactive process required by section 12940, subdivision (n), as Dedekian made repeated requests for accommodation, but CUSD refused to meet with her. CUSD contends, however, that once it decided to demote Dedekian to a teaching position, it no longer was required to discuss placing her in an administrative position as a reasonable accommodation. In support of its position, CUSD cites a line of cases which hold that an employer can discharge a disabled employee for workplace misconduct without violating the ADA, the federal Rehabilitation Act or FEHA. (See, e.g., Hamilton v. Southwestern Bell Telephone Co. (5th Cir. 1998) 136 F.3d 1047, 1052 [An employee who is fired because of outbursts at work directed at fellow employees has no ADA claim.]; Newland v. Dalton (9th Cir. 1996) 81 F.3d 904, 906 [ firings precipitated by misconduct rather than any handicap do not violate the [Rehabilitation] Act.]; Maddox v. University of Tennessee (6th Cir. 1995) 62 F.3d 843, 848 [Employers subject to the Rehabilitation Act and ADA must be permitted to take appropriate action with respect to an employee on account of egregious or criminal conduct, regardless of whether the employee is disabled.]; Little v. Federal Bureau of Investigation (4th Cir. 1993) 1 F.3d 255, 259 [same]; Gonzalez v. State Personnel Board (1995) 33 Cal.App.4th 422, 434 [ if an employees misconduct is such as to render him not otherwise qualified for the position held, termination is not prohibited. ].)

CUSD reasons that because it removed Dedekian from her position as principal of Central West due to misconduct, and Dedekian had tenure only as a teacher, not an administrator, it was not obligated to give her a second chance at an administrative position by promoting her to an existing position or creating one for her. (See Spitzer, supra, 80 Cal.App.4th at p. 1389 [reassignment of disabled employee as a reasonable accommodation does not require creating a new job, moving another employee, promoting the disabled employee, or violating another employees rights under a collective bargaining agreement [citation], but it nevertheless does entail affirmative action. Courts have made it clear that an employer has a duty to reassign a disabled employee if an already funded, vacant position at the same level exists.]; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 239-240 [holding employer not required to reinstate employment of mentally ill employee terminated because she abandoned her job where employee failed to identify any reasonable accommodation her employer should have provided and instead contended she was fully able to perform her job if she were returned to it, noting [r]easonable accommodation does not include excusing a failure to control a controllable disability or giving an employee a second chance to control the disability in the future.].)

We might agree if demotion to a teaching position was the inevitable outcome of Dedekians misconduct. But here the trial court found, in effect, that the board was not compelled to place Dedekian in a teaching position as punishment for her misconduct. Once Powell decided Dedekian should be removed as Central Wests principal, he admittedly considered other administrative positions, but rejected placing Dedekian in them, not because her misconduct rendered her unqualified for those positions, but because he did not feel she would be a good fit with the other employees at those school sites due to personality conflicts. When Powell decided to place Dedekian in an elementary teaching position, he did so, not because of her misconduct, but because he felt the position would be less stressful for her than an administrative position. That Dedekians misconduct did not render her unqualified for an administrative position is also shown by Garratts apparent attempts to convince the board to consider a lateral transfer.

Since there is substantial evidence to support the finding that the decision of where to place Dedekian following her removal from her position at Central West was not based on her misconduct, and that CUSD was aware of her need for accommodation before it decided to demote her, CUSD was not excused from its obligation to discuss reasonable accommodations with her, including a lateral transfer, once it decided to remove her from her position at Central West. Put another way, given the evidence before it, the trial court properly could find that Dedekian was seeking not a second chance, but instead an opportunity to be placed in a position that could accommodate her disabilities, particularly in light of her request for accommodation before the decision was made to remove her from her principal position and her apparent need for a flexible work schedule. This is true even if CUSD was not otherwise obligated to consider Dedekian for an administrative position. It was Dedekians disability, coupled with her need for accommodation, which required CUSD to discuss with her administrative or teaching positions that could accommodate her disability, instead of unilaterally placing her in a position that would not have provided her with the accommodation she most needed.

Although CUSD admits it refused to consider placing Dedekian in any position other than an elementary teaching position, it contends it was Dedekian who caused the breakdown in the interactive process because she refused to consider being placed in any position other than principal. The trial court, however, reasonably could conclude that CUSD, not Dedekian, was responsible for the breakdown, since there is evidence that CUSD refused to meet with Dedekian, not because she insisted on returning to a principal position, but because the board refused to consider anything other than a teaching position. Although Dedekian insisted in written communications that she could only be the principal of Central West and had testified in a deposition that was the only position she could return to, given Dedekians repeated requests to Garratt to meet, the trial court reasonably could conclude that if Powell and the board had met with her in good faith, she would have accepted some other administrative position.

Because the issue of CUSDs obligation to engage in the interactive process is primarily a factual one, and the trial courts findings on that issue are supported by substantial evidence, we reject CUSDs attempt to have the court decide the issue as a matter of law. Even if we, as fact finders, would have reached the conclusion CUSD asserts is the correct one, our task on substantial evidence review is to determine whether the finder of facts conclusion is supported by the evidence, not to determine whether a different conclusion also would be supported by the evidence. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Accordingly, we find no error in the trial courts decision to find in Dedekians favor on her claim that CUSD failed to engage in the interactive process in good faith.

II. Attorney Fees

CUSD contends the attorney fees award was an abuse of discretion because (1) there was no admissible or properly authenticated evidence of hours worked, (2) the hourly rate of Dedekians attorney, Baker, was not supported by the evidence, and (3) the trial court did not deduct the time Dedekians attorneys spent on the claims on which Dedekian did not prevail.

The FEHA provides that the court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs .... (Gov. Code, 12965, subd. (b). In determining the fee award, the trial court must first determine a lodestar or touchstone figure, which is the product of the number of hours worked by the attorneys and a reasonable fee per hour. [Citations.] The trial court then has the discretion to increase or reduce the lodestar figure by applying a positive or negative multiplier based on a variety of factors. (Greene v. Dillingham Construction, N.A., Inc. (2002) 101 Cal.App.4th 418, 422 (Greene); see also Serrano v. Priest (1970) 20 Cal.3d 25, 48-49 (Serrano); Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 445-446 (Vo); Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1171-1172 (Weeks).)

Limited success is among the factors the court should consider as a basis for awarding a reduced fee, especially where the plaintiff failed to obtain a substantial part of the relief he or she sought. (Feminist Womens Health Center v. Blythe (1995) 32 Cal.App.4th 1641, 1674; Sokolow v. County of San Mateo (1989) 213 Cal.App.3d 231, 249-250 (Sokolow); Bingham v. Obledo (1983) 147 Cal.App.3d 401, 407.) The purpose of augmenting or reducing the fee is to arrive at a reasonable figure which encourages litigation of meritorious claims without encouraging litigation of claims that have little value. (Weeks, supra, 63 Cal.App.4th at