Failure-to-accommodate cases are also disability-discrimination cases
As employment lawyers, we know we will likely face a motion for summary judgment or summary adjudication. Generally, in cases alleging employment discrimination, California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. However, disability discrimination, failure to accommodate, and failure to engage in the interactive process cases are different. Nonetheless, as a recent exchange with a trial judge at an MSJ/MSA hearing illustrated, many judges don’t quite understand the nuances that these cases present.
In a recent case of ours, our client had been injured on the job, blowing out both of his knees as a waste-water collection worker, and he could no longer climb into the manholes to access the sewers, climb in and out of the large trucks, or go up and down the steep hillsides to access water mains to do his job. His employer put him on leave and never returned him to work for the next three years. They never reassigned him to another vacant job despite having dozens of other job categories he could do and numerous job vacancies during his three years on forced leave. He was never fired, just out on a forced leave, and sadly died during the pendency of our lawsuit. Defendant filed an MSJ/MSA, and at the hearing, this exchange took place:
Judge: “So are you telling me that every failure to accommodate case is also a disability discrimination case?”
Counsel: “Yes, your honor, they are, all failure to accommodate cases are also disability discrimination cases. And that they failed to accommodate him is direct evidence of discrimination – had he not been injured or needing accommodations, he’d be at work.”
Judge: “But they didn’t put him on leave because of his disability. No, they put him on leave because he couldn’t do his old job and so really this is just a failure to accommodate case because you are saying they should have found him a new/vacant job.”
Summary adjudication in that case was granted as to the discrimination claim and denied as to the failure to accommodate and interactive process claims.
Unfortunately, many trial judges see it the same way our trial judge did. Fortunately, several California appellate courts have recently observed how these failure-to-accommodate situations are disability-discrimination cases. More significantly, they have highlighted that when a termination or forced leave is due to the injuries and disability, that this failure of accommodation by the employer is direct evidence of discrimination.
It is important to be familiar with the facts and holdings in three recent cases when confronted with disability discrimination, failure to accommodate, and interactive-process summary judgment motions – Wallace v. Cty. of Stanislaus (2016) 245 Cal.App.4th 109, Glynn v. Superior Ct. (2019) 42 Cal.App.4th 47, and Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1.
All three cases agree that, when there is direct evidence of discrimination, the court cannot grant summary judgment and the court does not engage in the three-stage McDonnell Douglas burden- shifting framework. While both Wallace and Glynn found that there was direct evidence, Zamora did not, though it did find that the circumstantial evidence was still sufficient to defeat summary judgment/adjudication. Being familiar with these cases will help employment lawyers in getting past summary judgment/adjudication.
Wallace v. County of Stanislaus
Wallace confirms that, when employers terminate an employee or force an employee on leave because they are out as a result of their disability or due to their restrictions, this is direct evidence of discrimination and animus towards that person’s disability. The factual background of Wallace is illustrative.
In Wallace, a sheriff deputy alleged disability discrimination against his employer. His employer had removed him from his job as bailiff and placed him on an unpaid leave of absence due to its incorrect assessment that he could not do his duties as a bailiff, even with reasonable accommodation, due to work restrictions stemming from a knee injury. Wallace injured his knee on the job and initially wore a knee brace until he had knee surgery. After his surgery, he was on a paid leave of absence until he returned to light duty work and then was cleared to return to work with a number of work restrictions. At that time, the County offered Wallace work as a bailiff, which he did for more than six months, April 2010 to October 2010, within his restrictions and with no complaints as to his performance.
However, in October 2010, following an agreed medical evaluation in the workers’ compensation case in October 2010, his employer removed him from the bailiff position on the grounds that he could not do the job with his restrictions.
Then, in a January 2011 meeting with his superiors, Wallace explained how he believed he could perform the functions of a bailiff (because he had done so for six months) and mentioned that he could work as a detective or school resource officer. (Wallace, supra, 245 Cal.App.4th at 118.)
However, rather than accommodate and return Wallace to work, they kept him out on a leave of absence. (Ibid.) For the next year, from January 2011 to February 2012, there was no communication with Wallace about his work status. (Ibid.) Then, on July 3, 2012, shortly before trial, the County offered to send Wallace to a fitness-for-duty examination, which resulted in Wallace being returned to work as a full-duty patrol officer on January 30, 2013, three months before the second trial. (Id. at 119.)
All told, Wallace was out of work on a forced leave of two years and three months, from October 2010 until January 30, 2013.
The Wallace court observed how “disability discrimination cases often involve direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse employment action.” (Wallace, supra, 245 Cal.App.4th at 123.) The court cautioned:
[C]ourts and practitioners should not automatically apply principles related to the McDonnell Douglas test to disability discrimination cases. Rather, they should examine the critical threshold issue and determine whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition.
(Id.; accord Glynn, supra, 42 Cal.App.4th at 53.)
On appeal, the court ruled there would only be a re-trial as to Wallace’s damages because there was “no dispute that County’s motive for placing Wallace on a leave of absence was its mistaken perception that his physical condition created a safety issue. It logically follows that County’s perception of Wallace’s physical condition was a substantial motiving reason for County’s decision to place Wallace on a leave of absence. Consequently, there is no need for a trier of fact to consider the substantial-motivating-reason element on remand — it is established as a matter of law.” (Wallace, supra, 245 Cal.App.4th at 134.)
The Wallace court concluded that “a plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff’s actual or perceived physical condition was a substantial motivating reason for the defendant’s decision to subject the plaintiff to an adverse employment action.” (Id. at 129.) The court confirmed an employer can take an adverse employment action against an employee even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability. (Id. at 128 [emphasis added]; see also Roby v. McKesson, Inc. (2009) 47 Cal.4th 686, 709-11, confirming an employer’s intent to discriminate can be inferred from an employer’s failure to accommodate a disabled employee.)
Employers in these cases also tend to argue that a leave of absence is the most reasonable accommodation they could provide – and that by giving them a long leave of absence, which may even have been routinely approved and granted – that there can be no liability on them under the FEHA. However, the Wallace Court rejected this argument and observed how under California law, “[w]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.” (Cal. Code Regs., tit. 2, § 11068, subd. (c).) Thus, when an employer forces an employee on a leave when they could have been accommodated, a forced leave of absence is not a lawful accommodation of a physical disability. (Wallace, 245 Cal.App.4th at 134.)
Glynn v. Superior Court
The employee in Glynn was a pharmaceutical salesman whose duties included driving. After Glynn developed a serious eye condition, his doctor authorized him to be off work because he could not drive safely, and Glynn took a medical leave of absence. The employer had a reasonable accommodation policy that provided for reassignment to a vacant position, and while on medical leave, Glynn applied for several open positions that did not require driving, but he was not reassigned. The employer’s policy also required termination after the employee was approved for long-term disability (LTD).
After Glynn was off work for six months, a human resources employee from his employer sent him a letter advising that he was being terminated because he had been approved for LTD since he could not return to work with or without reasonable accommodation. This was not correct. Even though Glynn was eligible to apply for LTD, he had not applied, nor been approved for LTD. Glynn reached out to his employer and protested his termination; he let them know that he never applied for LTD and could work in any position that did not require driving.
Nine months later, the employer admitted that the letter had been sent in error, agreed that the interactive process could have been handled better, and offered to reinstate Glynn’s employment with back pay. (Glynn, supra, 42 Cal.App.5th at 50-52.) The court concluded Glynn had “provided direct evidence of disability discrimination – [the employer] terminated him because [a human resources employee] mistakenly believed he was totally disabled and unable to work,” and held that this was enough to defeat summary adjudication. (Ibid.)
Zamora v. Security Industry Specialist
Zamora found that similar evidence was not direct evidence but was circumstantial evidence of discrimination; Zamora also reversed a grant of summary judgment. In Zamora, the plaintiff tripped and injured his knee at work. When he tripped, Zamora’s supervisor saw the incident and suggested he ice the knee, elevate it, and use a knee brace. Zamora worked every day from the day of the incident, June 2, 2010 until November 17, 2010. In about October of 2010, Zamora became eligible for health insurance and went to a doctor and reported the injury to his employer as a workers’ compensation claim.
His employer, Security Industry Specialists (SIS), also sent him to their own occupational doctor, who prescribed soft knee splint, cold packs and pain medication, released him to full duty and referred to an orthopedic doctor for evaluation. However, on November 17, 2010 Zamora stopped working because he could not tolerate pain anymore and pursued knee surgery with his orthopedic doctor, Dr. Kale. While on his leave, Zamora had knee surgery in May 2011. (Zamora, supra, 71 Cal.App.5th at 16-25.)
Then, in August/September 2011 Zamora was included as part of a layoff due to cuts in budget; he was ranked 16 of 19 and the company’s decision was to remove the lowest four ranking supervisors. However, SIS was able to find jobs for two of the four supervisors who ranked lower than Zamora and demoted those two to patrol officers. SIS also looked for other jobs for Zamora, within his restrictions, including being a driver, but that fell through. Then, on October 13, 2011, SIS sent him a letter that “due to his lack of attendance and no correspondence,” his job was cut due to the restructuring of the security positions. As of February 2012, Dr. Kale said that Zamora could not return to work in any capacity and had another surgery on his knee in June 2012. After November 17, 2010, Zamora never returned to work. (Ibid.)
Zamora argued there was direct evidence of: “1) SIS’s failure to report [his] injury; 2) denial of [his] requests for modified work; 3) failure to communicate with [him] and to provide him with modified work per the doctor’s notes[;] 4) [his] termination based on his lack of attendance when the only absences that [he] had were related to his disability[;] and 5) the person who made the decision to terminate him had the knowledge of [his] disability and request for accommodations.” (Id. at 37.)
However, the court did not agree. It distinguished Wallace and Glynn, saying that in those cases the evidence proved directly that the employers took adverse action against the employees based on erroneous conclusions about their disability. However, in Zamora, the court believed that there was no direct evidence that SIS laid Zamora off or treated him differently from other low-ranked supervisors who were not laid off because of his disability. (Ibid.) Nonetheless, the court found that the evidence showed circumstantial evidence that SIS could have found him another job as an accommodation, that he could perform the essential duties of a job with or without accommodation and that he was treated differently from other employees because of his disability. (Id. at 62.)
Disability-discrimination, failure- to-accommodate, and failure-to-engage- in-the-interactive-process cases are different than other FEHA discrimination cases, especially at summary judgment. Being able to highlight how the facts of your case have direct evidence – that the reason for the leave and/or termination was due to your client’s disability – will enable your case to survive summary judgment and ultimately prevail at trial.
Martin I. Aarons has been an employment law trial attorney for more than 18 years. As a trial lawyer, Martin has handled all types of employment related cases on behalf of people who have suffered a workplace injustice. He specializes in cases involving discrimination, sexual harassment, sexual abuse, retaliation and whistleblower cases of all kinds, shapes, and sizes. Martin was elected to the Executive Committee of the Consumer Attorneys Association of Los Angeles (CAALA), and will be CAALA's President in 2025.
by the author.
For reprint permission, contact the publisher: Advocate Magazine