Filed
6/23/10; pub. order 7/15/10 (see end of opn.)
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
TANYA MILAN,
Plaintiff and Appellant,
v.
CITY OF HOLTVILLE,
Defendant and Appellant.
D054139
(Super. Ct.
No. ECU02420)
APPEAL and
cross-appeal from a judgment of the Superior Court
of Imperial
County, Joseph W. Zimmerman, Judge.
Reversed with directions.
In this
case an employee at a municipal water treatment plant was injured on the
job. When she was recovering from her
injury, she was notified she had been terminated because the city did not
believe she could perform the essential functions of her job. She then brought an action under the Fair Employment and Housing Act (FEHA),
Government Code[1]
section 12940 et seq. in which she alleged the city had failed to attempt to
accommodate her disability and that she was capable of performing the essential
functions of her job.
The trial
court agreed with the employee, but found reinstatement was not appropriate
because it would require that the city discharge another employee. The trial court awarded the employee back pay
and emotional distress damages. However, the court declined to award the
employee any compensation for future lost wages or so-called "front
pay."
On appeal
the city argues that because, following notice to her that it believed she
could not perform her job, the employee never expressly requested an
accommodation or otherwise indicated that she wanted to continue working, it
had no duty to offer any accommodation.
For her part, by way of a cross-appeal, the employee argues the trial
court should have awarded her future lost wages.
We agree
with the city's contention it did not have to offer the employee any
accommodation. The record shows that
almost one year after the employee was injured, the city's workers compensation
administrator advised her that its doctor did not believe she would be able to
return to her job and offered her rehabilitation and retraining benefits. The employee accepted the benefits and did
not directly contact her employer about her status. More than 18 months after the employee was
injured, the city formally terminated her employment. This record shows the employee was given
ample opportunity to express interest in retaining her job. For more than 18 months she failed to do so,
but instead accepted retraining benefits for another career. Given these circumstances, where the employee
failed to express any meaningful or definitive interest in retaining her job, FEHA
did not require that her employer discuss with or offer her accommodations for
her disability.
FACTUAL BACKGROUND
In April
1998 Tanya Milan began work as a water treatment operator for the City of Holtville
(the city). Milan
began work as a Grade II operator and her job required that she take water
readings, collect samples, wash filters, and do anything else asked of her by
her supervisors at the city's water treatment plant. By September 2002 Milan
had been promoted to a Grade III operator and supervised a Grade II operator at
the treatment plant.
On September 10, 2002, while Milan
was moving a large L-shaped piece of metal known as an iron angle from one room
to another, the iron angle hit a wall and severely injured Milan's
neck. An MRI examination disclosed Milan's
fourth and fifth cervical vertebrae had been herniated and required immediate
surgery. The herniated discs were
removed, her vertebrae were fused and a metal plate was inserted in her neck.
Milan
applied for workers' compensation benefits, and on June 25, 2003, she was examined by a physician
retained on behalf of the city, Dr. Eric Korsh.
On that day Dr. Korsh sent the city a letter in which he stated his
belief that Milan's job required
"a significant amount of lifting, bending, and twisting." In light of his perception of her duties and
his assessment of her physical condition, Dr. Korsh concluded Milan
would not be able to return to work at the water treatment plant.
Milan
was unaware of Dr. Korsh's conclusion about her ability to return to work. The city's public works manager was aware of
Dr. Korsh's conclusion but decided to take no immediate action with respect to Milan's
employment because he wanted to see if her condition improved.
Although
the public works manager did not communicate with Milan
about Dr. Korsh's evaluation, on August
4, 2003, the outside administrator of the city's self-insured
workers' compensation program sent Milan
a letter which stated, in part:
"Dr. Korsh reports you will not be able to return to your usual job
because of the effects of your work injury." The letter stated that in light of Dr.
Korsh's assessment, the city was offering Milan
rehabilitation benefits. The letter
further states that Milan could
dispute the city's determination that she could not return to her job by
returning a form to a rehabilitation unit.
According
to Milan, she in fact attempted to
dispute the city's determination she was entitled to rehabilitation by
contacting either the workers' compensation administrator or workers'
compensation appeals board. However, Milan
also conceded that notwithstanding her belief that she could return to her job,
she accepted the rehabilitation benefits offered by the city and took an online
real estate course. Nonetheless, Milan
believed she was still employed by the city because she was in fact receiving a
regular pay check from the city, even though she had not returned to work. However, Milan
also conceded that she did not contact anyone at the city about her condition
or her plans to return to work.
On March 30, 2004, Milan
received a letter from the city terminating her employment. The letter stated that based on Dr. Korsh's
evaluation, the city had concluded that Milan
could not return to her customary position and there was no job within the city
which she could reasonably perform. The
letter enclosed Milan's final
paychecks and a check for earned, but unused, vacation time.
Milan
was shocked by the city's letter because she had been feeling better and was
very much looking forward to returning to work.
According to Milan, no one
from the city contacted her with respect to the city's decision to terminate
her employment. In particular, no one
from the city inquired of her as to whether her condition had improved in the
months following her examination by Dr. Korsh. According to Milan's
treating physician, Dr. Travis Calvin, as of May 17, 2004, Milan
could return to a job which did not require a great deal of physical activity,
such as teaching. Milan
continued treating with Dr. Calvin throughout 2004. Dr. Calvin testified that every time he saw Milan
through 2004 she expressed a desire to return to work.
On March 25, 2005, Dr. Calvin sent a
letter to the city's outside workers' compensation administrator in which he
concluded Milan could return to
work at the water treatment plant with some modifications. Dr. Calvin had reviewed a written description
of the duties required of a Grade III operator and believed she could perform
those duties so long as she was not required to: lift more than 35 pounds, do overhead work,
bend or stoop more than three hours a day, or use a ladder higher than 10 feet.
PROCEDURAL
HISTORY
On March 30, 2005, Milan
filed a complaint against the city alleging it had violated FEHA Milan
argued the city violated FEHA by failing to determine whether it could provide
effective accommodations for Milan's
disability.
Trial on Milan's
complaint commenced on April 30, 2008,
without a jury. At the close of Milan's
case, the city moved for judgment under Code of Civil Procedure section
631.8. The city argued Milan
had never sought an accommodation of her disability, and that in any event no
accommodation was possible because she could not perform the essential
functions of her job. Milan
opposed the motion, arguing that in light of Dr. Korsh's opinion, the city had
an obligation under FEHA to contact Milan
and determine whether it could accommodate her disability. The trial court denied the city's
motion. The trial court found that when
the city received Dr. Korsh's report, it had an obligation to engage with Milan
in an interactive process to determine whether her disability could be
accommodated and that the city had failed to do so. The trial court stated that, after hearing
the rest of the case, it would determine whether Milan's
limitation could be adequately accommodated.
Following
presentation of the city's case, the trial court took the matter under
submission. Thereafter, the trial court
issued a tentative decision in Milan's
favor. The court found the city failed
to engage with Milan in a process
to determine whether her disability could be accommodated and had failed to
provide a reasonable accommodation for her disability. Because of its concern that ordering
reinstatement would impose a hardship on other city employees, the trial court
declined to order that Milan be
reinstated. It did however award Milan
back pay in the amount of $124,050.96, $24,200 in emotional distress damages,
and $11,500 in other out-of-pocket losses.
In addition, it credited the city with a set off of $17,340 in temporary
disability payments Milan
received. Although Milan
requested it as an alternative to reinstatement, the trial court made no award
for loss of future wages or "front pay." The court also awarded Milan
$86,871.73 in attorney fees and costs.
The city
filed a timely notice of appeal and Milan
filed a timely cross-appeal.
DISCUSSION
I
A. Standards
of Review
On appeal we review the city's
contentions with respect to the sufficiency of the evidence under the usual
deferential standard and we review questions of law de novo. "When a trial court's factual
determination is attacked on the ground that there is no substantial evidence
to sustain it, the power of an appellate court begins and ends with the
determination as to whether, on the
entire record, there is substantial evidence, contradicted or
uncontradicted, which will support the determination, and when two or more
inferences can reasonably be deduced from the facts, a reviewing court is without
power to substitute its deductions for those of the trial court. If such
substantial evidence be found, it is of no consequence that the trial court
believing other evidence, or drawing other reasonable inferences, might have
reached a contrary conclusion.
[Citations.]" (
870, 873-874.)
B. Request
for Accommodation
In its principal argument on
appeal, the city contends the trial court erred in finding the city failed to
communicate with Milan with respect
to whether her disability could be accommodated. The city contends that notwithstanding the
fact Milan was given notice the city did not believe she could return to her
job, there is no evidence in the record Milan ever requested any accommodation
or even expressed to the city any desire to return to her former job. We agree with the city.
1. Interactive
Process
This case turns on whether the city
met its obligations under section 12940, subdivision (n). Section 12940, subdivision (n), requires that
an employer "engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable accommodations, if any,
accommodation by an employee or applicant with a known physical or mental
disability or known medical condition."
(Italics added.) An employer's
failure to engage in the interactive process required by section 12940,
subdivision (n), gives rise to liability under FEHA. (Claudio
v. Regents of University
224, 243.)
" '
"[T]he interactive process is at the heart of the [FEHA's] process and
essential to accomplishing its goals. It
is the primary vehicle for identifying and achieving effective adjustments
which allow disabled employees to continue working without placing an 'undue
burden' on employers." '
[Citation.] 'In a practical
sense,' as another court observed in the ADA context, 'the interactive process
is more of a labor tool than a legal tool, and is a prophylactic means to guard
against capable employees losing their jobs even if they are not actually
disabled. It is clearly a mechanism to
allow for early intervention by an employer, outside of the legal forum, for
exploring reasonable accommodations for employees who are perceived to be
disabled. . . .'
[Citation.] Realistically, when
an employer is aware of an employee's disability, the employer's interest is
not in assessing whether the individual's impairment may legally be considered
an 'actual disability.' Rather, '[t]he
focus of the interactive process centers on employee-employer relationships so
that capable employees can remain employed if their medical problems can be
accommodated . . . .' [Citation.]" (Gelfo
v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61-62, fn. omitted.)
Importantly,
by its terms section 12940 subdivision (n) requires that the employee initiate
the process. (Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at p. 62,
fn. 22.) On the other hand, "no
magic words are necessary, and the obligation arises once the employer becomes
aware of the need to consider an accommodation.
Each party must participate in good faith, undertake reasonable efforts
to communicate its concerns, and make available to the other information which
is available, or more accessible, to one party.
Liability hinges on the objective circumstances surrounding the parties'
breakdown in communication, and responsibility for the breakdown lies with the
party who fails to participate in good faith." (Id.
at p. 62, fn. 22.) As one court stated
in interpreting the analogous federal requirement to engage in an interactive
accommodation process: "Properly
participating in the interactive process means that an employer cannot expect
an employee to read its mind and know that he or she must specifically say 'I
want a reasonable accommodation,' . . . . The employer has to meet the employee
half-way, and if it appears that the employee may need an accommodation but
doesn't know how to ask for it, the employer should do what it can to
help. '[T]he employer must make a
reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is
best determined through a flexible, interactive process that involves both the
employer and the [employee] with a disability.' " (Bultemeyer
v. Fort Wayne Community Schools (1996) 100 F.3d 1281, 1285-1286; see also
F.3d 1105, 1112, overruled on other grounds U.S.
Airways, Inc. v. Barnett (2002) 535 U.S. 391.)
2. Milan's
Communication
Here, even if we generously
interpret an employee's obligation under section 12940, subdivision (n), the
record will not sustain a finding Milan
met her obligations under the
statute.
First, we
note the city had serious questions about Milan's
ability to perform her job and made her aware of those concerns when, in August
2003, the city's workers' compensation administrator relayed Dr. Korsh's
appraisal of her condition to her.
Secondly, by March 2004, when her employment was terminated, Milan
was aware she had not been at work for more than 18 months. While Dr. Korsh's appraisal and Milan's
lengthy absence did not create any duty to specifically request an
accommodation of her disability (see Bultemeyer
v. Fort Wayne Community Schools, supra,
100 F.3d at pp. 1285-1286), those circumstances did require that, at the very
least, she communicate to the city that she planned to continue working at the
water treatment plant. Section 12940,
subdivision (n), does not permit an employee to ignore notice his or her
employer believes he or she is not fit to work, be absent from work for more
than 18 months, and make no attempt to communicate with the employer about his
or her desire to continue working. Milan's
apparent response to the workers' compensation administrator or workers'
compensation appeals board was not adequate because in the end Milan
accepted rehabilitation and retraining benefits offered by the
administrator. In this context, good
faith required that Milan directly
express to the city her interest in retaining her job. Only then would an obligation to engage with
her with respect to possible accommodations arise.
In short,
where, as here, an employer has not received any communication from an employee
over a lengthy period of time, and after the employee has been given notice of
the employer's determination the employee is not fit, an employer is not
required by section 12940, subdivision (n), to initiate any discussion of
accommodations. Imposition of such a
duty under those circumstances would contradict the express terms of the
statute which requires that the employee
initiate the interactive process. Thus,
the record will not support the trial court's finding of liability under
FEHA. Rather, the trial court should have
granted the city's motion under Code of Civil Procedure section 631.8.[2]
DISPOSITION
The
judgment is reversed and remanded with instructions that judgment be entered in
favor of the city. The city to recover
its costs of appeal.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
HUFFMAN,
J.
Filed 7/15/10
CERTIFIED FOR PUBLICATION
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
TANYA MILAN,
Plaintiff and Appellant,
v.
CITY OF HOLTVILLE,
Defendant and Appellant.
D054139
(Super. Ct.
No. ECU02420)
THE COURT:
The opinion
filed June 23, 2010, is
ordered certified for publication. The
attorneys of record are:
Plourd
& Breeze and John W. Breeze; David A. Kay for Plaintiff and Appellant.
Walker
& Driskill and Steven M. Walker for Defendant and Appellant.
The
petition for rehearing is denied.
McCONNELL, P. J.
Copies
to: All parties
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Information provided by www.fearnotlaw.com
[1]
All further statutory references
are to the Government Code unless otherwise specified.
[2]
In light of our determination
judgment should be entered in favor of the city, we do not reach Milan's
contention on her cross-appeal that she should have been awarded compensation
for future lost wages or "front pay."
