• Delay in Employer's Accommodation of Disabled Employee Is Not a Violation of the Fair Employment and Housing Act
  • February 20, 2009 | Author: Bruce A. Scheidt
  • Law Firm: Kronick Moskovitz Tiedemann & Girard, A Law Corporation - Sacramento Office
  • In Wilson v. County of Orange, (--- Cal.Rptr.3d ---, Cal.App. 4 Dist., Jan. 6, 2009), a California Court of Appeal considered a disabled employee’s claim that her employer’s delay in fully accommodating her disability was a violation of the Fair Employment and Housing Act (“FEHA”). The court ruled that because the employer had sought an accommodation, and that the employee ultimately was accommodated in precisely the manner she sought, substantial evidence supported a jury’s verdict in the employer’s favor.

    Julie Ann Wilson was employed by the Orange County (“County”) Sheriff’s Department (“Department”) as a dispatcher in the county-wide emergency communications system. The most difficult and stressful assignment of that job was working on the system’s “red channel,” to assist officers when they leave their jurisdictions.

    Wilson also suffered from a blood disease that led to blood coagulating and clotting, thereby increasing her risk of a heart attack. In 2003 and 2004 Wilson complained about working on the red channel claiming it was stressful and she feared making errors and receiving criticism. In August 2004 she told her supervisor she could no longer work on the red channel for medical reasons. Her supervisors agreed to a temporary work restriction but told her they could not make the restriction permanent due to operational concerns. The County’s human resources department offered Wilson other jobs throughout the county, all of which she turned down due to more difficult commutes or a reduction in pay.

    Human resources personnel continued to negotiate with Wilson, her supervisors and her attorney through 2004 and 2005. In June 2005, one supervisor notified her superiors that she had commenced an “interactive process” with Wilson, and in August 2005, the parties reached an accommodation agreement providing that Wilson would not work more than five consecutive days, for no more than 10 hours a day, have no graveyard shifts, and no red channel work.

    Wilson agreed to the accommodation, but then filed suit, alleging the County violated FEHA by failing to accommodate and engage in a good faith interactive process. The jury was asked to decide if Wilson had proved by a preponderance of evidence that she requested the County to accommodate a disability which the county then failed or refused to do. The jury answered negatively and entered judgment for the County. Wilson appealed.

    FEHA makes it unlawful for an employer to fail to make a reasonable accommodation for the known physical or mental disability of an employee. The essential elements of a failure to accommodate are that the employee has a disability, the employee is qualified to perform the essential functions of the position, and that the employer failed to reasonably accommodate the disability.

    That Wilson suffered a disability covered by FEHA is undisputed, the court said. The delay in accommodating her came as a result of valid concerns over the necessity of an employee in Wilson’s position to work the red channel. Nonetheless, the court noted, supervisors and human resources personnel continued to negotiate to reach an accommodation. Wilson complained that it took too long for her supervisors to reach a permanent agreement with the restrictions she sought. Her assertion that an interactive process did not begin until June 2005 was not supported because evidence showed that department officials tried repeatedly to reach accommodation before then.

    The record demonstrates that the County engaged in a process aimed at trying to accommodate Wilson, as required by FEHA. The success of the process is borne out by the fact that Wilson ultimately received the accommodations she wanted, albeit after a series of temporary accommodations. Therefore, ample evidence supported the jury verdict in the County’s favor and the judgment was affirmed.