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MILAN v. CITY OF HOLTVILLE
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.

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