Authored by: Serafin Tagarao
Garcia v. California Department of Corrections & Rehabilitation, No. ECU05684 (January 16, 2015): In a recent unpublished ruling, the California Court of Appeal affirmed a directed verdict in favor of the California Department of Corrections and Rehabilitation (CDCR) against a former employee alleging disability discrimination in violation of the California Fair Employment and Housing Act (FEHA). The court found that substantial evidence supported the jury verdict because the former employee, a painter, could not perform an essential function of his job with or without reasonable accommodation.
CDCR hired Joseph Garcia in 1993 as a Painter II. In 1998, Garcia’s medical doctor wrote a letter to CDCR stating that Garcia was experiencing headaches, vertigo, and neck pain. His doctor placed work restrictions on him requiring Garcia to perform work “at ground level” and banned him from “climbing on ladders, roofs, scaffolding, or extension ladders.” Upon receipt of these restrictions, CDCR allowed Garcia to continue to work without climbing roofs, ladders, scaffolding, tension ladders, or unattended areas.
Nearly a decade later in mid-2007, CDCR requested that Garcia obtain an updated medical clearance from his doctor, but he failed to do so. In November of 2007, another doctor conducted a fitness-for-duty evaluation of Garcia and concluded that he was unable to perform the essential functions of his job. The doctor stated that working at heights and in stressful situations was “clearly noted in the job description.” He suggested modifications for Garcia including no safety-sensitive work, no work at heights, and no work on ladders, scaffolds, or roofs.
A month after the evaluation, Garcia met with one of CDCR’s return-to-work coordinators who explained his employment options given the doctor’s evaluation. The coordinator also presented him with a letter outlining 10 different options. Garcia responded by checking a form option stating that he sought to return to work with or without reasonable accommodation.
On December 31, 2007, the coordinator sent Garcia another letter inviting him “to further engage in the interactive process” as she had not received his completed application.
CDCR then notified Garcia in September of 2009 via letter that effective November 30, 2009, it would medically demote him from his painter position to laboratory assistant at a different location because he could not perform his job’s essential functions. In January 2010, Garcia failed to timely report to his new position, and CDCR terminated his employment.
In November of 2011, Garcia filed a first amended complaint alleging nine causes of action including failure to engage in the interactive process, failure to accommodate disability, disability discrimination, and retaliation.
At trial, several witnesses testified that working at heights was an essential function of the Painter II position. The trial court also admitted into evidence the CDCR Painter II job description, which stated that the painter may be required to use an aerial lift device and work on scaffolding, extension ladders, and second story roofs. The jury found that working on ladders or scaffolds at heights above four feet was an essential job duty of the Painter II position. In light of the jury’s finding, the trial court found Garcia was not a qualified individual under FEHA and granted a directed verdict as to all remaining causes of action except retaliation, as to which it declared a mistrial.
CDCR subsequently moved for summary judgment on the retaliation cause of action, and the court granted the motion finding Garcia could not establish a prima facie case of retaliation because he did not engage in a protected activity under FEHA.
The California Court of Appeal affirmed the directed verdict as to Garcia’s disability discrimination claim, finding that an essential function of the Painter II position was to paint above ground based on testimony from several personnel including those who supervised Garcia, the return-to-work coordinator, as well as the documents describing the Painter II position. Although Garcia presented evidence of his long employment at CDCR, the longtime accommodation CDCR provided him, and his supervisors’ favorable evaluation of his work, “the precise inquiry under FEHA pertained to the essential functions of his job, and the jury answered that question adversely to him based on substantial evidence.”
As to the failure to accommodate claim, the court noted that the return-to-work coordinator had offered him several options to accommodate him, but he rejected them all and insisted on returning to his painter job with accommodation despite the fitness-for-duty doctor’s explanation of the essential functions of the job and safety problems that could result from his continued work in that position. Furthermore, other vacant positions were not available because Garcia did not have a high school diploma. Thus, the lab assistant position, which did not require a high school diploma, was a reasonable accommodation. Based on the evidence, Garcia failed to show CDCR failed to reasonably accommodate him under FEHA.
The court also rejected Garcia’s contention that CDCR failed to engage in the interactive process. The court found that CDCR had sent him options regarding his reasonable accommodation and also outlined the difficulty finding alternative placements for him because of his lack of a high school diploma. Similar to the employer in Raine v. City of Burbank (2006), CDCR has no obligation under FEHA to make a temporary light-duty position available indefinitely once the employer learned the disability was permanent. Citing Furtado v. State Personnel Board (2013), the court further noted that Garcia was not entitled to an accommodation as that would dispense with the requirement that Garcia demonstrate that he is a “qualified individual” under FEHA.
Finally, as to Garcia’s retaliation claim, the Court of Appeal found no evidence to support Garcia’s contention that CDCR failed or refused to explain its termination decision. The court found that the reason for Garcia’s discharge was the doctor’s conclusion that Garcia could not perform the essential function of the job. Garcia failed to show the reason he was discharged was pretextual, and thus his retaliation claim failed as well.
Practical Impact
According to Leslie E. Wallis, a shareholder in the Los Angeles office of Ogletree Deakins, “This case provides an answer to the difficult question of whether an employer that has provided an accommodation (such as job modification or light-duty work) to a disabled employee for an extended period of time can reinstate the essential job requirements for that employee. Employees have sometimes asserted that when an employer has allowed the employee to avoid performing a job function, it is ‘proof’ that the job function was not actually essential. This case places that assumption in jeopardy, instead supporting the position that length of time alone will not establish that the essential functions of a job have been irretrievably altered.”
“However, it is important to note,” Wallis continued, “that this case addresses a situation in which an accommodation had been offered for an extended period during which time the employer did not know that the employee’s disability was permanent. Once the employer became aware of the permanent nature of the disability, it acted to change the situation and engaged in the interactive process with the employee. It is important to keep in mind that employers must act quickly after they learn of a permanent disability. The outcome of the case might be different where the employer permits employees to remain in light-duty positions indefinitely or where the employer becomes aware that an employee is permanently disabled and the employer does not act or seek to engage in the interactive process immediately thereafter.”