California Court Revisits Employer’s Duty to Reasonably Accommodate Disabled Employee Under FEHA

Swanson v. Morongo Unified School District, No. G050290 (November 26, 2014): In a recent unpublished decision, a California Court of Appeal held that a teacher, whose request to teach a particular grade as an accommodation after undergoing cancer treatment was denied and whose teaching contract was not renewed, may proceed to trial with her claims against her employer.

Lauralyn Swanson was hired by Morongo Unified School District as a technology/reading specialist and computer laboratory teacher in 2006. The following year, Swanson was diagnosed with breast cancer and missed most of the 2007-2008 school year. The following year, Swanson was offered a fifth grade teaching assignment. Swanson objected to the assignment and noted that her health may prevent her from doing the work required to prepare for the new assignment. She requested a second grade assignment as she had recently taught second grade at a different school. But the district assigned a different teacher to second grade and offered Swanson a kindergarten assignment. Swanson expressed concern about teaching kindergarten because she had not taught kindergarten in 30 years. She was also concerned that the cancer treatment had weakened her immune system, leaving her exposed to the many illnesses of kindergarten children can catch. The district did not change her assignment.

Shortly after the start of the school year, Swanson went on medical leave and was hospitalized for eight days due to complications of her breast cancer, which she attributed to the kindergarten teaching assignment. Swanson returned to work in December 2008, but received a series of poor evaluations and was not rehired the following school year. She sued the school district alleging violations of California’s Fair Employment and Housing Act (FEHA) for discrimination, failure to accommodate, and failure to engage in the interactive process.

The district requested a dismissal by summary judgment. The trial court granted the dismissal and Swanson appealed.

The Court of Appeal reversed the dismissal and noted that the district did not meet its burden of proof under the McDonnell Douglas burden-shifting framework. Further, the court noted that when seeking summary judgment, the employer has the initial burden to show that the employee’s claims would not hold up at trial, or show that there was a nondiscriminatory reason for the district’s action against the employee.

The court noted that in order for the district to satisfy its initial burden on Swanson’s failure to accommodate claim, the district must show that the second grade assignment was not available or was not a reasonable accommodation, or that the fifth grade and kindergarten assignments offered to Swanson “were reasonable accommodations that would have allowed Swanson to adequately perform her essential job functions.”

Regarding Swanson’s claim for failure to engage in the interactive process, the court held that “FEHA required the [d]istrict to engage in an ongoing dialogue regarding accommodations.” The court held that by failing to engage in further discussions after Swanson objected to the kindergarten assignment, the district did not comply with its duty to engage in the interactive process.

Practical Impact

The Swanson case illustrates some common employer pitfalls when addressing reasonable accommodation and interactive process issues. The employer believed that it satisfied its reasonable accommodation and interactive process obligations by transferring the employee from a fifth grade teaching position to a kindergarten teaching position even though the employee requested a second grade teaching position. The employer argued that it was not obligated to provide the employee with the accommodation that she requested. While this may be true, the Swanson court found that the employer missed three critical steps.

First, the employer presented no evidence that it evaluated whether the employee could perform the essential functions of the kindergarten teaching position with or without reasonable accommodation. At least for summary judgment purposes, this lack of evidence precluded the employer from demonstrating that the kindergarten teaching position was a reasonable accommodation. The bottom line is that if an employer wishes to choose its preferred accommodation over the employee’s preferred accommodation, the employer should be prepared to show that its preferred accommodation will allow the employee to perform the essential functions of his or her job with or without reasonable accommodation.

Second, it should be noted that the Department of Fair Employment and Housing’s regulations require an employer to: (1) assign a disabled employee who can no longer perform the essential functions of their current position to a vacant position for which she is qualified as a reasonable accommodation and (2) provide the disabled employee preference over non-disabled employees vis a vis assignment to the vacant position. Here, without explaining its basis for doing so, the employer assigned a nondisabled employee to the vacant second grade teaching position despite the plaintiff’s request to be placed in that position as an accommodation.

Third, the employer failed to show that it actually engaged in a back-and-forth dialogue with the employee regarding her requested accommodation. As a result, the employee was able to argue (at least for summary judgment purposes) that the employer unilaterally assigned her to the kindergarten teaching position without engaging in any dialogue with her as to why it could not assign her to a second grade teaching position. It is critical that employers document these discussions with employees so that they can later show that they did indeed engage in the interactive process. If an employer wishes to choose its preferred accommodation over the employee’s preferred accommodation, it should meet with the employee to discuss the issue and then memorialize that discussion in writing. This written communication should explain why the employer chose not to provide the employee’s preferred accommodation and why the employer believes that its preferred accommodation will allow the employee to perform the essential functions of the job with or without reasonable accommodation.