• Employer Was Not Required to Discuss or Offer Accommodations for an Employee’s Disability Where the Employee Failed to Express an Interest in Retaining Her Job
  • August 26, 2010 | Authors: Mona Ebrahimi; Stanley C. Powell; Bruce A. Scheidt; David W. Tyra
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Milan v. City of Holtville, (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., June 23, 2010), a court of appeal considered whether an employer violated the Fair Employment and Housing Act (“FEHA”) when it terminated an employee who was recovering from a work-related injury without offering the employee any accommodations for her disability. The court of appeal held the employer did not violate the FEHA because the employee never expressly requested accommodations or indicated she wanted to continue working for the employer and she accepted retraining benefits to retrain for another career.

    Tanya Milan suffered a severe neck injury in September 2002 while working for the City of Holtville (“City”). Milan had surgery to remove herniated disks, fuse her vertebrae, and insert a metal plate in her neck. Milan applied for workers’ compensation benefits. Dr. Eric Korsh, a physician retained by City, examined Milan on June 25, 2003, and concluded she would not be able to return to work at City’s water treatment plant. City sent Milan a letter informing her of Dr. Korsh’s opinion about her inability to return to work and stated that she could dispute Dr. Korsh’s determination. City offered Milan rehabilitation benefits. Although Milan initially tried to dispute City’s determination she was entitled to rehabilitation, she eventually accepted the rehabilitation benefits and took an online real estate course. She claimed that despite accepting the rehabilitation benefits, she thought she was still employed by City because she received a regular paycheck from City.

    Milan received a letter from City on March 30, 2004, which notified her that City was terminating her employment. City informed Milan it had concluded that she “could not return to her customary position and there was no job within [C]ity which she could reasonably perform.” Milan was shocked when she received the letter “because she had been feeling better and was very much looking forward to returning for work.” Milan’s treating physician sent City a letter on March 25, 2005, stating “Milan could return to work at the treatment plant with some modifications,” including not lifting more than 35 pounds, not performing overhead work, not bending or stooping more than three hours per day, and not using a ladder higher than 10 feet.

    Milan filed a complaint against City on March 30, 2005, alleging City had violated the FEHA because it failed to determine whether it could provide effective accommodations for her disability. The trial court found City failed to engage in a process with Milan to determine if it could accommodate her disability and also failed to provide reasonable accommodations for her disability.

    City contended the trial court erred in finding it failed to communicate with Milan about her disability because, although Milan was given notice that City did not believe she could return to her job, Milan never requested any accommodations or told City she wanted to return to her former job. The court of appeal agreed with City and reversed the decision of the trial court.

    The FEHA, at Government Code section 12940, subdivision (n), provides that an employer must “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Emphasis added.) If the employer does not engage in this interactive process, the employer will be liable under the FEHA. The interactive process “is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an ‘undue burden’ on employers.”

    Section 12940 subdivision (n) requires that the employee, not the employer, initiate the interactive process. Although “no magic words are necessary” an employer’s obligation arises after it “becomes aware of the need to consider an accommodation.” The employer and the employee must both “participate in good faith, undertake reasonable efforts to communicate [their] concerns, and make available to the other information which is available, or more accessible, to one party.” An employer’s “[l]iability 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.”

    The court concluded Milan failed to meet her obligations under section 12940. City had serious concerns about Milan’s ability to perform her job in August 2003 as a result of Dr. Korsh’s report. By the time City terminated Milan’s employment, she had not been at work for more than 18 months. The court found that while these two factors did not create any duty for Milan to specifically request that City accommodate her disability, these “circumstances did require that, at the very least, she communicate to the [C]ity that she planned to continue working at the water treatment plant.” The court found, “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.” Furthermore, Milan’s attempt to dispute City’s determination she was entitled to rehabilitation benefits was not adequate to start the interactive process because she later decided to accept the benefits.

    The court stated, “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.” Accordingly, the court of appeal reversed the decision of the trial court and ordered judgment to be entered in favor of City.