Court Dismisses Failure to Accommodate Case: Employee "Got Exactly What She Wanted"

February 3, 2009

Affirming a jury verdict in favor of the employer in a disability discrimination case, the California Court of Appeal held that the employer engaged in the interactive process to develop a reasonable accommodation for the employee’s disability and, in fact, accommodated the employee’s disability in accordance with the California Fair Employment and Housing Act (FEHA).  Wilson v. County of Orange, No. G039733 (Cal. Ct. App. Jan. 6, 2009). Indeed, the court noted that the success of the accommodation process was “borne out by the fact that, in the end, [the employee] got exactly what she wanted.”

In 2001, the plaintiff Julie Ann Wilson began working as a radio dispatcher for the Orange County Sheriff’s Department, which provides countywide emergency communications services to all public safety agencies.  Communications were provided through five channels — two “Purple Channels,” one “Red Channel,” one “Paramedic Desk,” and one “Teletype Desk.”  The Paramedic Desk handled medical communications for ambulances and medics.  The Purple Channels and the Teletype Desk worked together to retrieve and transmit data to officers in the field.  The Red Channel assisted officers when they left their jurisdictions, carried countywide broadcasts regarding missing persons, stolen vehicles, and robberies, and monitored various radio channels. 

Dispatchers were assigned to work one of the “channels” on eight-hour shifts, although 10-hour shifts also could be assigned.  Dispatchers also provided backup to the other channels.  The Red Channel was considered the most stressful assignment, and each dispatcher usually was assigned to the Red Channel at least once per week.

In 2002, the plaintiff took a medical leave of absence due to a rare blood disease.  Following her leave, she returned to work and performed all of her duties on all shifts.  In August 2004, she informed her supervisor that she could no longer work on the Red Channel because she was having concentration and memory problems related to a new medication.  The plaintiff told the employer’s human resources manager, Karen Kiddy, that she felt her condition would improve with further treatment and the work restriction would be temporary.  In September 2004, the plaintiff’s physician informed the employer that, because the plaintiff’s medical condition carried an increased risk of heart attack, the plaintiff should avoid high stress level tasks and should not work on the Red Channel. 

As a result of her medical restrictions, the plaintiff was assigned to work temporarily on the Teletype Desk, with no reduction in pay, from September 2 until November 30, 2004.  In December 2004, the human resources department attempted to locate alternate positions for her.  However, she rejected all alternatives because they involved a longer commute, lower pay, or a demotion.  From December 2004 to March 2005, the plaintiff took an unpaid leave of absence.  In March 2005, she returned to work on the Teletype Desk, but went on leave again after her physician imposed additional restrictions of no more than 10 hours per shift and no graveyard shifts. 

In response to the plaintiff’s need for additional accommodations, Kiddy began to investigate how to accommodate the plaintiff’s needs and the employer’s operational concerns.  Specifically, the plaintiff’s supervisors were concerned about the impact of the accommodations on other employees who would need to work more graveyard shifts and receive more Red Channel assignments.  The supervisors also were concerned that the plaintiff would not maintain the skills necessary to provide backup during emergencies.  Nevertheless, Kiddy concluded that working regular shifts on the Red Channel, and working occasional graveyard shifts, were not essential job functions for a dispatcher.  Kiddy also determined that it would not cause undue hardship if the plaintiff were no longer assigned to the Red Channel.  Ultimately, the plaintiff and the employer entered into an accommodation agreement providing that the plaintiff would not work more than five consecutive days, no more than 10 hours a day, no graveyard shifts, no alternating shifts, and she would not have to work at the Red Channel.  The plaintiff would otherwise perform all of her duties, including backing up the Red Channel as required.  

The plaintiff returned to work and thereafter sued the employer, alleging that it had failed to reasonably accommodate her disability.  Following a trial, the jury returned a verdict for the employer, and the plaintiff appealed.

Under the FEHA, it is unlawful for employers to “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship.”  Government Code § 12940(m).  The FEHA also requires employers “to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations.”  Government Code § 12940(n).  To establish a disability discrimination claim based on a failure to accommodate, the plaintiff must prove that:

1. she has a disability covered by the FEHA;
2. she can perform the essential functions of the position; and
3. the employer failed to reasonably accommodate the plaintiff’s disability.

The parties did not dispute that the plaintiff had a disability or that the employer accommodated her disability.  The “gist” of plaintiff’s complaint was that the employer took too long to enter into the accommodation agreement.  The court rejected the plaintiff’s claim.  Noting that the interactive process is informal, it found that the plaintiff’s supervisors and the employer’s human resources managers worked to address her restrictions.  The employer assigned the plaintiff to work at the Teletype Desk, searched for alternate positions, permitted her to take a leave of absence, and ultimately agreed to all of her accommodation requests.  Accordingly, the court found that the “record amply support[ed] the jury verdict,” and affirmed the judgment in favor of the employer.

This decision illustrates how employers can build the best defense against a failure to accommodate claim.  Here, notwithstanding that it did all that the law requires to accommodate its employee, the employer was sued.  The employer successfully defended itself because it took the time to engage in the interactive process regarding possible accommodations.  It worked proactively developing solutions to enable the employee to continue to work and memorialized its efforts in an accommodation agreement.

Jackson Lewis’ Disability, Leave and Health Management attorneys can assist employers regarding disability management and accommodation requests.