MILAN v. CITY OF HOLTVILLE
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <html ><br /> <head><br /> <title>MILAN v</title><br /> </head><br /> <body><br /> <div><br /> <br/> <br /> <br/> <br /> <br/><b<br /> >MILAN</b><b<br /> > v. CITY OF </b><b<br /> >HOLTVILLE</b><b<br /> ></b><br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/>Filed<br /> 6/23/10; pub. order 7/15/10 (see end of opn.)<br /> <br/><b > </b><br /> <br/><b > </b><br /> <br/><b > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/><b<br /> > </b><br /> <br/>COURT<br /> OF APPEAL, FOURTH APPELLATE DISTRICT<br /> <br/> <br /> <br/>DIVISION<br /> ONE<br /> <br/> <br /> <br/>STATE<br /> OF CALIFORNIA<br /> <br/> <br /> <br/> <br /> <br/> <br /> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0 width=624<br /> ><br /> <tr ><br /> <td width=336 valign=top ><br /> <br/>TANYA MILAN,<br /> <br/> <br /> <br/> Plaintiff and Appellant,<br /> <br/> <br /> <br/> v.<br /> <br/> <br /> <br/>CITY OF HOLTVILLE,<br /> <br/> <br /> <br/> Defendant and Appellant.<br /> <br/> <br /> </td><br /> <td width=288 valign=top ><br /> <br/> D054139<br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> (Super. Ct.<br /> No. ECU02420)<br /> <br/> <br /> </td><br /> </tr><br /> </table><br /> <br/> <br /> <br/> APPEAL and<br /> cross-appeal from a judgment of the Superior Court<br /> of Imperial<br /> County, Joseph W. Zimmerman, Judge. <br /> Reversed with directions.<br /> <br/> <br /> <br/> In this<br /> case an employee at a municipal water treatment plant was injured on the<br /> job. When she was recovering from her<br /> injury, she was notified she had been terminated because the city did not<br /> believe she could perform the essential functions of her job. She then brought an action under the Fair Employment and Housing Act (FEHA),<br /> Government Code[1]<br /> section 12940 et seq. in which she alleged the city had failed to attempt to<br /> accommodate her disability and that she was capable of performing the essential<br /> functions of her job.<br /> <br/> The trial<br /> court agreed with the employee, but found reinstatement was not appropriate<br /> because it would require that the city discharge another employee. The trial court awarded the employee back pay<br /> and emotional distress damages. However, the court declined to award the<br /> employee any compensation for future lost wages or so-called "front<br /> pay."<br /> <br/> On appeal<br /> the city argues that because, following notice to her that it believed she<br /> could not perform her job, the employee never expressly requested an<br /> accommodation or otherwise indicated that she wanted to continue working, it<br /> had no duty to offer any accommodation. <br /> For her part, by way of a cross-appeal, the employee argues the trial<br /> court should have awarded her future lost wages.<br /> <br/> We agree<br /> with the city's contention it did not have to offer the employee any<br /> accommodation. The record shows that<br /> almost one year after the employee was injured, the city's workers compensation<br /> administrator advised her that its doctor did not believe she would be able to<br /> return to her job and offered her rehabilitation and retraining benefits. The employee accepted the benefits and did<br /> not directly contact her employer about her status. More than 18 months after the employee was<br /> injured, the city formally terminated her employment. This record shows the employee was given<br /> ample opportunity to express interest in retaining her job. For more than 18 months she failed to do so,<br /> but instead accepted retraining benefits for another career. Given these circumstances, where the employee<br /> failed to express any meaningful or definitive interest in retaining her job, FEHA<br /> did not require that her employer discuss with or offer her accommodations for<br /> her disability.<br /> <br/>FACTUAL BACKGROUND<br /> <br/> In April<br /> 1998 Tanya Milan began work as a water treatment operator for the City of Holtville<br /> (the city). Milan<br /> began work as a Grade II operator and her job required that she take water<br /> readings, collect samples, wash filters, and do anything else asked of her by<br /> her supervisors at the city's water treatment plant. By September 2002 Milan<br /> had been promoted to a Grade III operator and supervised a Grade II operator at<br /> the treatment plant.<br /> <br/> On September 10, 2002, while Milan<br /> was moving a large L-shaped piece of metal known as an iron angle from one room<br /> to another, the iron angle hit a wall and severely injured Milan's<br /> neck. An MRI examination disclosed Milan's<br /> fourth and fifth cervical vertebrae had been herniated and required immediate<br /> surgery. The herniated discs were<br /> removed, her vertebrae were fused and a metal plate was inserted in her neck.<br /> <br/> Milan<br /> applied for workers' compensation benefits, and on June 25, 2003, she was examined by a physician<br /> retained on behalf of the city, Dr. Eric Korsh. <br /> On that day Dr. Korsh sent the city a letter in which he stated his<br /> belief that Milan's job required<br /> "a significant amount of lifting, bending, and twisting." In light of his perception of her duties and<br /> his assessment of her physical condition, Dr. Korsh concluded Milan<br /> would not be able to return to work at the water treatment plant.<br /> <br/> Milan<br /> was unaware of Dr. Korsh's conclusion about her ability to return to work. The city's public works manager was aware of<br /> Dr. Korsh's conclusion but decided to take no immediate action with respect to Milan's<br /> employment because he wanted to see if her condition improved.<br /> <br/> Although<br /> the public works manager did not communicate with Milan<br /> about Dr. Korsh's evaluation, on August<br /> 4, 2003, the outside administrator of the city's self-insured<br /> workers' compensation program sent Milan<br /> a letter which stated, in part: <br /> "Dr. Korsh reports you will not be able to return to your usual job<br /> because of the effects of your work injury." The letter stated that in light of Dr.<br /> Korsh's assessment, the city was offering Milan<br /> rehabilitation benefits. The letter<br /> further states that Milan could<br /> dispute the city's determination that she could not return to her job by<br /> returning a form to a rehabilitation unit.<br /> <br/> According<br /> to Milan, she in fact attempted to<br /> dispute the city's determination she was entitled to rehabilitation by<br /> contacting either the workers' compensation administrator or workers'<br /> compensation appeals board. However, Milan<br /> also conceded that notwithstanding her belief that she could return to her job,<br /> she accepted the rehabilitation benefits offered by the city and took an online<br /> real estate course. Nonetheless, Milan<br /> believed she was still employed by the city because she was in fact receiving a<br /> regular pay check from the city, even though she had not returned to work. However, Milan<br /> also conceded that she did not contact anyone at the city about her condition<br /> or her plans to return to work.<br /> <br/> On March 30, 2004, Milan<br /> received a letter from the city terminating her employment. The letter stated that based on Dr. Korsh's<br /> evaluation, the city had concluded that Milan<br /> could not return to her customary position and there was no job within the city<br /> which she could reasonably perform. The<br /> letter enclosed Milan's final<br /> paychecks and a check for earned, but unused, vacation time.<br /> <br/> Milan<br /> was shocked by the city's letter because she had been feeling better and was<br /> very much looking forward to returning to work. <br /> According to Milan, no one<br /> from the city contacted her with respect to the city's decision to terminate<br /> her employment. In particular, no one<br /> from the city inquired of her as to whether her condition had improved in the<br /> months following her examination by Dr. Korsh. According to Milan's<br /> treating physician, Dr. Travis Calvin, as of May 17, 2004, Milan<br /> could return to a job which did not require a great deal of physical activity,<br /> such as teaching. Milan<br /> continued treating with Dr. Calvin throughout 2004. Dr. Calvin testified that every time he saw Milan<br /> through 2004 she expressed a desire to return to work.<br /> <br/> On March 25, 2005, Dr. Calvin sent a<br /> letter to the city's outside workers' compensation administrator in which he<br /> concluded Milan could return to<br /> work at the water treatment plant with some modifications. Dr. Calvin had reviewed a written description<br /> of the duties required of a Grade III operator and believed she could perform<br /> those duties so long as she was not required to: lift more than 35 pounds, do overhead work,<br /> bend or stoop more than three hours a day, or use a ladder higher than 10 feet.<br /> <br/>PROCEDURAL<br /> HISTORY<br /> <br/> On March 30, 2005, Milan<br /> filed a complaint against the city alleging it had violated FEHA Milan<br /> argued the city violated FEHA by failing to determine whether it could provide<br /> effective accommodations for Milan's<br /> disability.<br /> <br/> Trial on Milan's<br /> complaint commenced on April 30, 2008,<br /> without a jury. At the close of Milan's<br /> case, the city moved for judgment under Code of Civil Procedure section<br /> 631.8. The city argued Milan<br /> had never sought an accommodation of her disability, and that in any event no<br /> accommodation was possible because she could not perform the essential<br /> functions of her job. Milan<br /> opposed the motion, arguing that in light of Dr. Korsh's opinion, the city had<br /> an obligation under FEHA to contact Milan<br /> and determine whether it could accommodate her disability. The trial court denied the city's<br /> motion. The trial court found that when<br /> the city received Dr. Korsh's report, it had an obligation to engage with Milan<br /> in an interactive process to determine whether her disability could be<br /> accommodated and that the city had failed to do so. The trial court stated that, after hearing<br /> the rest of the case, it would determine whether Milan's<br /> limitation could be adequately accommodated.<br /> <br/> Following<br /> presentation of the city's case, the trial court took the matter under<br /> submission. Thereafter, the trial court<br /> issued a tentative decision in Milan's<br /> favor. The court found the city failed<br /> to engage with Milan in a process<br /> to determine whether her disability could be accommodated and had failed to<br /> provide a reasonable accommodation for her disability. Because of its concern that ordering<br /> reinstatement would impose a hardship on other city employees, the trial court<br /> declined to order that Milan be<br /> reinstated. It did however award Milan<br /> back pay in the amount of $124,050.96, $24,200 in emotional distress damages,<br /> and $11,500 in other out-of-pocket losses. <br /> In addition, it credited the city with a set off of $17,340 in temporary<br /> disability payments Milan<br /> received. Although Milan<br /> requested it as an alternative to reinstatement, the trial court made no award<br /> for loss of future wages or "front pay." The court also awarded Milan<br /> $86,871.73 in attorney fees and costs.<br /> <br/> The city<br /> filed a timely notice of appeal and Milan<br /> filed a timely cross-appeal.<br /> <br/>DISCUSSION<br /> <br/>I<br /> <br/> A. <i >Standards<br /> of Review</i><br /> <br/><i > </i>On appeal we review the city's<br /> contentions with respect to the sufficiency of the evidence under the usual<br /> deferential standard and we review questions of law de novo. "When a trial court's factual<br /> determination is attacked on the ground that there is no substantial evidence<br /> to sustain it, the power of an appellate court <i >begins</i> and <i >ends</i> with the<br /> determination as to whether, <i >on the<br /> entire record</i>, there is substantial evidence, contradicted or<br /> uncontradicted, which will support the determination, and when two or more<br /> inferences can reasonably be deduced from the facts, a reviewing court is without<br /> power to substitute its deductions for those of the trial court. <i >If such<br /> substantial evidence be found, it is of no consequence that the trial court<br /> believing other evidence, or drawing other reasonable inferences, might have<br /> reached a contrary conclusion</i>. <br /> [Citations.]" (<i<br /> >Bowers v. Bernards</i> (1984) 150 Cal.App.3d<br /> 870, 873-874.)<br /> <br<br /> clear=all ><br /> <br/> <br /> <br/> B. <i >Request<br /> for Accommodation</i><br /> <br/><i > </i>In its principal argument on<br /> appeal, the city contends the trial court erred in finding the city failed to<br /> communicate with Milan with respect<br /> to whether her disability could be accommodated. The city contends that notwithstanding the<br /> fact Milan was given notice the city did not believe she could return to her<br /> job, there is no evidence in the record Milan ever requested any accommodation<br /> or even expressed to the city any desire to return to her former job. We agree with the city.<br /> <br/> 1. <i >Interactive<br /> Process</i><br /> <br/>This case turns on whether the city<br /> met its obligations under section 12940, subdivision (n). Section 12940, subdivision (n), requires that<br /> an employer "engage in a timely, good faith, interactive process with the<br /> employee or applicant to determine effective reasonable accommodations, if any,<i<br /> > in response to a request for reasonable<br /> accommodation by an employee </i>or applicant with a known physical or mental<br /> disability or known medical condition." <br /> (Italics added.) An employer's<br /> failure to engage in the interactive process required by section 12940,<br /> subdivision (n), gives rise to liability under FEHA. (<i >Claudio<br /> v. Regents of </i><i >University</i><i<br /> > of </i><i >California</i> (2005) 134 Cal.App.4th<br /> 224, 243.)<br /> <br/> " '<br /> "[T]he interactive process is at the heart of the [FEHA's] process and<br /> essential to accomplishing its goals. It<br /> is the primary vehicle for identifying and achieving effective adjustments<br /> which allow disabled employees to continue working without placing an 'undue<br /> burden' on employers." ' <br /> [Citation.] 'In a practical<br /> sense,' as another court observed in the ADA context, 'the interactive process<br /> is more of a labor tool than a legal tool, and is a prophylactic means to guard<br /> against capable employees losing their jobs even if they are not actually<br /> disabled. It is clearly a mechanism to<br /> allow for early intervention by an employer, outside of the legal forum, for<br /> exploring reasonable accommodations for employees who are perceived to be<br /> disabled. . . .' <br /> [Citation.] Realistically, when<br /> an employer is aware of an employee's disability, the employer's interest is<br /> not in assessing whether the individual's impairment may legally be considered<br /> an 'actual disability.' Rather, '[t]he<br /> focus of the interactive process centers on employee-employer relationships so<br /> that capable employees can remain employed if their medical problems can be<br /> accommodated . . . .' [Citation.]" (<i >Gelfo<br /> v. Lockheed Martin Corp.</i> (2006) 140 Cal.App.4th 34, 61-62, fn. omitted.)<br /> <br/> Importantly,<br /> by its terms section 12940 subdivision (n) requires that the employee initiate<br /> the process. (<i >Gelfo v. Lockheed Martin Corp., supra,</i> 140 Cal.App.4th at p. 62,<br /> fn. 22.) On the other hand, "no<br /> magic words are necessary, and the obligation arises once the employer becomes<br /> aware of the need to consider an accommodation. <br /> Each party must participate in good faith, undertake reasonable efforts<br /> to communicate its concerns, and make available to the other information which<br /> is available, or more accessible, to one party. <br /> Liability hinges on the objective circumstances surrounding the parties'<br /> breakdown in communication, and responsibility for the breakdown lies with the<br /> party who fails to participate in good faith." (<i >Id</i>.<br /> at p. 62, fn. 22.) As one court stated<br /> in interpreting the analogous federal requirement to engage in an interactive<br /> accommodation process: "Properly<br /> participating in the interactive process means that an employer cannot expect<br /> an employee to read its mind and know that he or she must specifically say 'I<br /> want a reasonable accommodation,' . . . . The employer has to meet the employee<br /> half-way, and if it appears that the employee may need an accommodation but<br /> doesn't know how to ask for it, the employer should do what it can to<br /> help. '[T]he employer must make a<br /> reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is<br /> best determined through a flexible, interactive process that involves both the<br /> employer and the [employee] with a disability.' " (<i >Bultemeyer<br /> v. Fort Wayne Community Schools</i> (1996) 100 F.3d 1281, 1285-1286; see also <i<br /> >Barnett v. U.S. Air, Inc.</i> (2000) 228<br /> F.3d 1105, 1112, overruled on other grounds <i >U.S.<br /> Airways, Inc. v. Barnett </i>(2002) 535 U.S. 391.)<br /> <br/> 2. <i >Milan</i><i >'s<br /> Communication</i><br /> <br/><i > </i>Here, even if we generously<br /> interpret an employee's obligation under section 12940, subdivision (n), the<br /> record will not sustain a finding Milan<br /> met <i >her</i> obligations under the<br /> statute.<br /> <br/> First, we<br /> note the city had serious questions about Milan's<br /> ability to perform her job and made her aware of those concerns when, in August<br /> 2003, the city's workers' compensation administrator relayed Dr. Korsh's<br /> appraisal of her condition to her. <br /> Secondly, by March 2004, when her employment was terminated, Milan<br /> was aware she had not been at work for more than 18 months. While Dr. Korsh's appraisal and Milan's<br /> lengthy absence did not create any duty to specifically request an<br /> accommodation of her disability (see <i >Bultemeyer<br /> v. Fort Wayne Community Schools</i>, <i >supra</i>,<br /> 100 F.3d at pp. 1285-1286), those circumstances did require that, at the very<br /> least, she communicate to the city that she planned to continue working at the<br /> water treatment plant. Section 12940,<br /> subdivision (n), does not permit an employee to ignore notice his or her<br /> employer believes he or she is not fit to work, be absent from work for more<br /> than 18 months, and make no attempt to communicate with the employer about his<br /> or her desire to continue working. Milan's<br /> apparent response to the workers' compensation administrator or workers'<br /> compensation appeals board was not adequate because in the end Milan<br /> accepted rehabilitation and retraining benefits offered by the<br /> administrator. In this context, good<br /> faith required that Milan directly<br /> express to the city her interest in retaining her job. Only then would an obligation to engage with<br /> her with respect to possible accommodations arise.<br /> <br/> In short,<br /> where, as here, an employer has not received any communication from an employee<br /> over a lengthy period of time, and after the employee has been given notice of<br /> the employer's determination the employee is not fit, an employer is not<br /> required by section 12940, subdivision (n), to initiate any discussion of<br /> accommodations. Imposition of such a<br /> duty under those circumstances would contradict the express terms of the<br /> statute which requires that the <i >employee</i><br /> initiate the interactive process. Thus,<br /> the record will not support the trial court's finding of liability under<br /> FEHA. Rather, the trial court should have<br /> granted the city's motion under Code of Civil Procedure section 631.8.[2]<br /> <br<br /> clear=all ><br /> <br/> <br /> <br/>DISPOSITION<br /> <br/> The<br /> judgment is reversed and remanded with instructions that judgment be entered in<br /> favor of the city. The city to recover<br /> its costs of appeal.<br /> <br/> <br /> <br/> <br /> <br/><u> </u><br /> <br/>BENKE, J.<br /> <br/> <br /> <br/>WE CONCUR:<br /> <br/> <br /> <br/> <br /> <br/><u> </u><br /> <br/> McCONNELL,<br /> P. J.<br /> <br/> <br /> <br/> <br /> <br/><u> </u><br /> <br/> HUFFMAN,<br /> J.<br /> <br/> <br /> </div><br /> <br<br /> clear=all ><br /> <div><br /> <br/>Filed 7/15/10<br /> <br/>CERTIFIED FOR PUBLICATION<br /> <br/> <br /> <br/>COURT<br /> OF APPEAL, FOURTH APPELLATE DISTRICT<br /> <br/> <br /> <br/>DIVISION<br /> ONE<br /> <br/> <br /> <br/>STATE<br /> OF CALIFORNIA<br /> <br/> <br /> <br/> <br /> <br/> <br /> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0 width=624<br /> ><br /> <tr ><br /> <td width=336 valign=top ><br /> <br/>TANYA MILAN,<br /> <br/> <br /> <br/> Plaintiff and Appellant,<br /> <br/> <br /> <br/> v.<br /> <br/> <br /> <br/>CITY OF HOLTVILLE,<br /> <br/> <br /> <br/> Defendant and Appellant.<br /> <br/> <br /> </td><br /> <td width=288 valign=top ><br /> <br/> D054139<br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> (Super. Ct.<br /> No. ECU02420)<br /> <br/> <br /> </td><br /> </tr><br /> </table><br /> <br/> <br /> <br/> THE COURT:<br /> <br/> The opinion<br /> filed June 23, 2010, is<br /> ordered certified for publication. The<br /> attorneys of record are:<br /> <br/> Plourd<br /> & Breeze and John W. Breeze; David A. Kay for Plaintiff and Appellant.<br /> <br/> Walker<br /> & Driskill and Steven M. Walker for Defendant and Appellant.<br /> <br/> The<br /> petition for rehearing is denied.<br /> <br/> <br /> <br/><u> </u><br /> <br/>McCONNELL, P. J.<br /> <br/> <br /> <br/>Copies<br /> to: All parties<br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/>Publication Courtesy of San<br /> Diego County Legal Resource Directory.<br /> <br/>Analysis and review provided by San Diego County Property line attorney.<br /> <br/>San Diego Case<br /> Information provided by www.fearnotlaw.com<br /> <br/> <br /> <br/> <br /> <br/> <br /> </div><br /> <div ><br clear=all><br /> <hr align=left size=1 width="33%"><br /> <div<br /> id=ftn1><br /> <br/>[1]<br /> All further statutory references<br /> are to the Government Code unless otherwise specified.<br /> </div><br /> <div<br /> id=ftn2><br /> <br/>[2]<br /> In light of our determination<br /> judgment should be entered in favor of the city, we do not reach Milan's<br /> contention on her cross-appeal that she should have been awarded compensation<br /> for future lost wages or "front pay."<br /> </div><br /> </div><br /> </body><br /> </html><br />