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Court of Appeal Decision Highlights Importance for Employers to Consider FEHA Implications of Personnel Actions

David Zamora was hired as a "field supervisor" by Security Industry Specialists (SIS) which provides security staffing services to major corporations, including Apple Computer. He started his job on 5/26/2010 and was assigned to Apple's main campus in Cupertino, California. Zamora was one of 19 field supervisors. They reported to three watch commanders. The Apple worksite was overseen by a site manager, Marty Vaughn.

On 6/2/2010 (only eight days after starting the job), Zamora sustained an injury to his left knee while he was running across the Apple campus to respond to a call. Zamora claimed that his watch commander, Jim Mazon, witnessed him trip over a curb. Mazon suggested that Zamora ice the knee and elevate it when he got home. Neither Zamora nor Mazon reported the injury or filled out a DWC-1 Claim Form.

Zamora first sought medical treatment on 10/14/2010. He claimed that he waited for his probationary period with SIS to conclude so that he would be eligible for health insurance. His doctor diagnosed a torn meniscus and advised Zamora that he needed surgery.

The following day, 10/15/2010, Zamora reported the injury to the site manager and filled out a Workers' Compensation Claim Form. He also alleged that he requested modified work on numerous occasions, but was told that there was none available. He stopped working on 11/17/2010.

Based on the delay in reporting the claim and information that Zamora had sustained a prior knee injury, SIS's insurer denied the workers' compensation claim. Because the claim was denied, the insurer did not pay any temporary disability benefits. However, SIS continued to provide Zamora with his salary.

Zamora provided SIS with periodic reports documenting his ongoing temporary disability status. He was eventually released to modified duty on 9/11/2011.

In the interim, in August or early September 2011, Apple advised SIS that it planned to cut its budget for outside security services and move those services in-house. This resulted in SIS making the decision to cut 48 positions, including four of the field supervisor positions.

SIS's human resources department developed merit-based criteria to evaluate which field supervisors would be laid off. Zamora ranked 16 out of the 19 supervisors. Consequently, he was one of the four selected for lay-off. He was notified that his last day would be 10/10/2011. SIS also informed him that they would continue trying to find a position for him within the company.

After the lay-offs, SIS rehired two of the former supervisors (including one who ranked lower than Zamora) patrol officers (a demotion).

In October 2012, Zamora file a wrongful termination action. The Complaint included allegations that SIS violated California's Fair Employment and Housing Act (FEHA). The allegations included disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, and wrongful termination.

In February 2013, Zamora settled his workers' compensation claim by Compromise & Release. The settlement included the release of any claim under Labor Code § 132a. The settlement was approved by a workers' compensation judge.

In June 2015, SIS filed a Motion for Summary Adjudication. It argued in part that Zamora could not prove discrimination because there was was no evidence that SIS had subjected him to any adverse employment action because of his disability and that it had a legitimate, non-discriminatory reason for terminating his employment.

As to the failure to accommodate claim, SIS argued that it accommodated Zamora's disability by granting him leave during the period that he was temporarily disabled. Further, SIS argued that it was actually Zamora who failed to engage in the interactive process because he never provided SIS with a list of physical restrictions and did not ask for assistance at work.

Finally, SIS argued that the wrongful termination/retaliation claim was barred by the workers' compensation Compromise & Release which included a resolution of any claim under Labor Code § 132a.

The trial judge granted the defendant's Motion and Zamora appealed. The Court of Appeal determined that the trial judge erred in granting the Motion with regard to the discrimination, failure to accommodate, and failure to participate in the interactive process. However, it upheld the decision with regard to the wrongful termination/retaliation claim.

Initially, the court provided an overview of FEHA and its prohibitions against discharging or discriminating against an employee because of a physical or mental disability or medical condition. The court noted that FEHA addresses two types of discrimination -- (1) intentionally discriminatory acts, and (2) acts that are facially neutral but which have a disproportionate effect on disabled employees (disparate impact). The court determined that the facts of this case involved disparate treatment of Zamora.

The court noted that Zamora was a disabled employee as defined by FEHA. Consequently, SIS had an affirmative duty to engage in the interactive process and to make reasonable accommodations, including advising Zamora of other suitable jobs within the company. While granting an employee a medical leave may be a reasonable accommodation, an employer cannot require an employee to take a leave if it can provide another accommodation. In this case, SIS was provided with Zamora's work restrictions, but Zamora alleges that there was never any discussion with him regarding alternative positions. SIS disputes this. Consequently, there is a triable issue and summary adjudication is not appropriate.

The court also found that there was a triable issue with regard to SIS's argument that Zamora's lay-off was a legitimate business decision based on the reduction in Apple's security budget. Specifically, the court noted that two of the former supervisors who were to be laid off were placed in other positions. This option was never offered to Zamora, even though one of the supervisors scored lower than Zamora on the criteria used to rank the employees. While SIS argued that the patrol officer position was not compatible with Zamora's work restrictions, the court found that a trier of fact could reasonable infer that there was a discriminatory reason. Therefore, summary adjudication of the issue was not proper.

The case has been remanded to the trial court for further proceedings.

This case provides a good reminder for employers to carefully evaluate personnel decisions involving injured or disabled workers. They cannot simply keep a worker who is temporarily disabled off the job. They have an affirmative obligation to conduct a good faith analysis to determine if they can accommodate work restrictions or disabilities. The employer also has an obligation to advise the employee of any reasonably available positions and to conduct an interactive meeting to determine if the employee can fill one of the positions, with our without accommodation.

The case is David Zamora v. Security Industry Specialists (9/30/2021; H044008). It was originally issued as an unpublished decision. However, Zamora filed a request on 10/20/2021 to have the opinion published. That request was granted on 10/28/2021.

In summary, Zamora presented sufficient evidence to support a prima facie case 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.

Tags

workerscompensation, humanresources, feha, hannabrophy, risk management