22 Cal. App. 5th 1187 | Cal. Ct. App. 5th | 2018
*1189Plaintiff Marisa Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance. In 2013, she was hired as an administrative assistant. During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months. At the completion of 12 months of probation, she would be considered a permanent employee. Eight months into her probationary period and with the district's consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the district prior to her most recent hiring. She was scheduled to return to work on, or shortly after, the anniversary of her hiring date. The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.
Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) ( Gov. Code,
I
FACTS
A. Evidence Admitted at Trial
Hernandez's 2013 hiring was the third time she worked for the district. During her second stint with the district, she was injured at work on September 4, 2012, when her right ankle became entangled in cords underneath her desk. Hernandez fell, hitting her shoulder, her right knee, and left hand against a filing cabinet.
*351Hernandez was to be on probation for a year with the latest hiring. Reviews were due at three, seven, and 11 months. Her job performance was not evaluated after three months or after seven months. When she did not receive her review after three months, she called the vice-president of student affairs, who had stated she and Dean Bryant would take care of all human resources matters. No one ever got back to Hernandez about that review. She called again when it was time for her seven-month review. Hernandez said she was "freaked out" because she had not heard from anyone about her reviews and she wanted to know how she was doing in her job. No one ever told Hernandez there was any issue with her performance.
The injuries Hernandez suffered in 2012 all healed, except for the injury to one of her fingers. That finger had been broken, but it had not been diagnosed at the time of the injury. A knuckle had been "completely destroyed," causing her "considerable pain." Her doctor recommended surgery. On October 17, 2013, after she had already been working as a permanent administrative assistant for more than six months, Hernandez spoke with Donald Maus, the *1191risk manager for the district, about her doctor's recommendation. She said Maus sounded angry and, because she started to feel intimidated by Maus, Hernandez asked him if she should not get the surgery. He did not advise against surgery. She asked if having the surgery was going to cost the district a lot of money, and he said the schools rates would go up. Hernandez told Maus she was on probation and concerned about her job. He told her not to worry, "because you cannot be fired on a workers' comp case." Hernandez said that had he told her the surgery would affect her probation, she would have put off the surgery, because the job was important to her.
Hernandez's doctor estimated she would be out of work for three to four months. The district agreed to Hernandez taking time off for the surgery. Hernandez had surgery replacing her damaged knuckle with bone from a cadaver on November 18, 2014, slightly more than eight months after she started working as a permanent administrative assistant.
In late February 2014, Hernandez received a letter from Judyanne Chitlik, who works in the district's human resources department, terminating her employment with the district. Hernandez thought the district had made a mistake and sent the letter to the wrong person. She had no prior notice her job was in jeopardy. Hernandez called the telephone number in the letter and spoke to Chitlik's secretary who seemed nervous after hearing Hernandez's name and, after putting her on hold for a long time, the secretary said Chitlik was not available to talk to Hernandez. Hernandez asked when Chitlik would be available and the secretary said it would not be that week. The secretary refused to make an appointment for Hernandez. Hernandez then gave the secretary her telephone number, requesting Chitlik to call her back.
Chitlik returned Hernandez's telephone call a few hours later. In an angry voice, Chitlik told Hernandez, "You should [have] known better than to take a personal leave while you're on probation." Hernandez said she was on an approved workers compensation leave, not a personal leave, but Chitlik said it was a personal leave and that Hernandez was terminated from probation. Had Chitlik told Hernandez she could reapply for the position, she would have. Hernandez's belief, however, was that she could not reapply because her employment had been terminated.
*352B. The Trial Court's Decision
In an 11-page statement of decision, the trial court found Hernandez was a probationary employee who had a temporary total disability, and consequently, the district "had the option to deduct the time she was not able to work from her one-year probationary period or extend the probationary period by the number of days [Hernandez] was off work." The court found *1192either would have been a reasonable accommodation and would have given her a 12-month probation. The trial court rejected the district's contention that it could not do either because it was required to make Hernandez a permanent employee on the anniversary of her hiring, and stated it would not have been an undue hardship to accommodate Hernandez by extending her probationary period.
The trial court also found the district's own attorney had advised that to terminate Hernandez might be considered disability discrimination, although the lawyer concluded the district could lawfully terminate her. Lastly, the trial court found the district failed to accommodate Hernandez's temporary total disability and failed to engage in any interactive process with her and instead, summarily terminated her employment.
II
DISCUSSION
A. Validity of the Appeal
The district filed its appeal in this matter on January 27, 2017, purporting to appeal from a judgment after trial and the statement of decision dated December 1, 2016. The judgment after trial was not entered and served until January 30, 2017. Hernandez contends "[t]he record fails to show any appeal has been filed to the judgment entered on January 30, 2017." She is technically correct.
"The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments." ( Alan v. American Honda Motor Co., Inc. (2007)
Hernandez also contends the district failed to present an adequate record on appeal to decide the present appeal because some of the exhibits and transcripts of testimony are not included in the record. However, there are only two issues argued in this appeal: 1) whether the district failed to *1193provide a reasonable accommodation to Hernandez in violation of section 12940, subdivision (m), of the FEHA; and 2) whether the district failed to engage in an interactive process with Hernandez in violation of section 12940, subdivision (n), of the FEHA. The record on appeal is sufficient for this court to review these issues. ( Dawson v. Toledano (2003)
B. Standard of Review
Under the substantial evidence test, we "presume that the trial court made all factual findings necessary to support the *353judgment so long as substantial evidence supports those findings." ( SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004)
Questions of law are reviewed de novo. ( Farm Raised Salmon Cases (2008)
C. Analysis
1. Section 12940, Subdivision (m)
A person's right to hold employment without discrimination based on a physical disability is protected by the FEHA (§ 12900 et seq.). ( Chavez v. City of Los Angeles (2010)
There are three elements to a failure to accommodate action: "(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified *1194individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation.]" ( Wilson v. County of Orange (2009)
The district argued giving Hernandez time off from work for her surgery and recovery was a reasonable accommodation. It argues it had to terminate her probation and employment when the anniversary of her hiring date approached because if it did not, she would have become a permanent employee on the anniversary of her hiring under Education Code section 88013, subdivision (a),
*354Yes, the district accommodated Hernandez by giving her time off for her surgery, but the accommodation can hardly be considered reasonable when it included the consequence that she would lose her job if she took the time off to undergo surgery. While "a finite leave can be a reasonable accommodation under FEHA, provided it is likely at the end of the leave, the employee would be able to perform ... her duties" ( Hanson v. Lucky Stores, Inc. (1999)
This conclusion is borne out by reference to subdivision (n) of section 12940 (discussed infra ). That subdivision requires an employer to engage in a good faith, interactive process with the employee "to determine effective reasonable accommodations." ( § 12940, subd. (n), italics added.) An "accommodation" that leads directly to termination of employment is not an effective accommodation and is not reasonable under the FEHA.
*1195Education Code section 88013, subdivision (a), states a probationary period shall not exceed one year. The statute provides the employer with a year in which to evaluate the employee's performance. It does not state whether there are periods of time that may be deducted from the year, such as when an employee has been injured on the job and unable to work for a period of time while on probation.
Both parties cite Bell v. City of Torrance (1990)
Bell began work for the City of Torrance on August 11, 1986. ( Bell , supra , 226 Cal.App.3d at p. 191,
Bell contended she was a permanent employee after the anniversary of her hiring and the City did not have authority to extend her probationary period. ( Bell , supra , 226 Cal.App.3d at p. 193,
In the present matter, subdivision (a) of Education Code section 88013 states a probationary period is not to exceed one year. The collective bargaining agreement in the present matter, like the MOU in Bell , provides that a leave of absence is not considered a break in service. Unlike the MOU in Bell , the collective bargaining agreement does not speak to deducting *1196leaves of absence from " 'total service.' "
Section 12940, subdivision (m), requires an employer to make a reasonable accommodation for a qualified employee's disability. That section's purpose is to permit an individual with a disability to remain gainfully employed.
Here, the district attempts to use Education Code section 88013, subdivision (a)'s one-year probationary period-a statute enacted to shield employees like Hernandez from serving an indefinite period of time under the "Sword of Damocles"-as a sword against an employee who was away from work on a medical leave for a work injury and unavailable to have her work performance evaluated during that period of time. (See Wiles v. State Personnel Board (1942)
Because we conclude the district could have deducted from Hernandez's probationary period the extended period of time she was away from work due to her work-related injury, the district would not have incurred the purported undue hardship (see § 12926, subd. (u)) of having to make her a permanent employee on the anniversary of her hiring without benefit of having had her job performance evaluated. The trial court did not err in concluding the district failed to reasonably accommodate Hernandez's temporary total disability.
2. Section 12940, Subdivision (n)
Hernandez's second cause of action was for a violation of section 12940, subdivision (n). The FEHA makes it unlawful "[f]or an employer ...
*1197to fail to engage in a timely, good faith, interactive process with the employee ... to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee ... with a known physical or mental disability or known medical condition." ( § 12940, subd. (n).)
*356"The 'interactive process' required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. [Citation.] Ritualized discussions are not required." ( Wilson v. County of Orange , supra , 169 Cal.App.4th at p. 1195,
Under the circumstances we find in this record, where there is evidence Hernandez was told she could not be fired for taking medical leave and she was thereafter fired when she took the leave, we cannot conclude the interactive process was in good faith. Later, when Hernandez attempted to interact with Chitlik, she was rebuffed. Thus, instead of sitting down with the employee and working out an effective accommodation, the district slammed and locked the door. We agree with the trial court's conclusion the district also violated section 12940, subdivision (n).
III
DISPOSITION
The judgment is affirmed. Hernandez is entitled to her costs on appeal.
WE CONCUR:
BEDSWORTH, ACTING P.J.
ARONSON, J.
All further statutory references are to the Government Code, unless otherwise indicated.
The facts in this matter are essentially undisputed.
"The governing board of a community college district shall prescribe written rules and regulations, governing the personnel management of the classified service, which shall be printed and made available to employees in the classified service, the public, and those concerned with the administration of this section, whereby these employees are, except as provided in Section 72411, designated as permanent employees of the district after serving a prescribed period of probation which shall not exceed one year ." (Ed. Code, § 88013, subd. (a), italics added.)
Skelly v. State Personnel Board (1975)
Total service appears to be basis for advancement within a pay range, the accrual of vacation (Bell , supra , 226 Cal.App.3d at p. 194,