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Zuber Lawler & Del Duca

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ZLD Successfully Defends Southern California Gas Company in Employment Discrimination Case

June 1, 2016

Jeremy Gray, Partner of Zuber Lawler & Del Duca, has successfully defended Southern California Gas Company (SoCalGas) in Brian Dushman v. Southern California Gas Company (Case No. B256291, 2nd App. Dist., Div. 7, May 16, 2015), an employment discrimination case that provides some much-needed clarity on what duties employers have and do not have when handling employee requests for reasonable accommodations. An article by Tatiana Semerjian Nunneri 

Brief Factual Background of the Case

The plaintiff, Brian Dushman, was a part-time meter reader for SoCalGas who broke his leg after tripping while on the job.  Although he did not qualify for any type of leave under the Family and Medical Leave Act or the California Family Rights Act (because he was a part-time employee), SoCalGas gave him a lengthy leave of absence—over seven months.  Unfortunately, while the plaintiff was on leave, he advised SoCalGas that his leg injury rendered him permanently unable to perform the duties of his job as a meter reader, with or without accommodation.  Dushman also stated that he had to work close to his home because he could not drive far with his leg injury.

SoCalGas reached out to Dushman after he was released from a rehabilitation facility for his leg to commence the interactive process.  During the interactive process,  SoCalGas attempted to place the plaintiff in clerical and cashier positions in the company.  However, Dushman did not qualify for any clerical positions because his score on the requisite typing test was too low.  When Dushman was cleared to return to work, SoCalGas arranged for Dushman to interview for a cashier position twenty-five miles away from his home.  However, Dushman performed poorly at the interview and was not offered the job.  Dushman claimed that he was nervous at the interview because it was his first time driving such a long distance.  Because there were no vacancies for positions Dushman was qualified to fulfill, after granting him seven months of leave, SoCalGas was forced to terminate him. 

Dushman subsequently filed suit against SoCalGas, alleging causes of action for disability discrimination in violation of the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940), failure to accommodate in violation of FEHA, failure to engage in the interactive process under FEHA, failure to take all reasonable steps to prevent discrimination under FEHA, and wrongful termination in violation of public policy.  After prevailing on summary judgment, Dushman appealed, and the Court of Appeal unanimously affirmed the trial court’s ruling in favor of SoCalGas, in an opinion authored by Judge Blumenfeld.

The Court of Appeal’s Decision in Favor of SoCalGas

Foremost, the Court of Appeal found that Dushman could not sustain a claim for disability discrimination as a matter of law because his leg injury rendered him unable to work as a meter reader.  The Court reiterated that for a disability discrimination claim under California Government Code section 12940, subdivision (a), the employee “must prove that he was able to perform the essential functions of the position for which he had been hired.” (Emphasis added).  Dushman admitted he could never return to work as a meter reader.

As to the failure to accommodate claim, the Court of Appeal explained that under Government Code section 12926, subdivision (o), when an employee is unable to return to his or her existing job, the employer’s duty is limited to determining whether it has an available position for which the employee is qualified.  The Court reiterated that the extent of the duty is “ ‘to reassign a disabled employee if an already funded, vacant position at the same level exists.’ ” (citing Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729 and Gov. Code § 12926(o)).  The employer is not required to create a new job for the employee, move another employee, promote the disabled employee, or violate another employee’s rights. 

The Court of Appeal held that there were no triable issues of material fact regarding SoCalGas’ accommodation of Dushman and that Dushman’s “arguments on appeal seek to impose obligations on SoCalGas that do not exist under the law.”  In particular:

• SoCalGas was not obligated to inform Dushman that he could re-interview for the cashier position because plaintiff had not requested to be re-interviewed and because the plaintiff never informed SoCalGas that he was nervous at the interview. 

• SoCalGas was not required to provide Dushman with a tutor or coach to improve his typing or cashiering skills. The Court of Appeal stated that an employer is not required to “provide a tutor or coach so that an employee may become qualified for a job he is unqualified to do for reasons other than his disability.”

• SoCalGas was not required to allow Dushman to retake the typing test because there were no comparable part-time positions that Dushman could have fulfilled even if he did meet the requisite typing speed on the re-take.  Although there was a full-time typing job available, SoCalGas was not required to place the plaintiff in it because it was not at “the same level” as the part-time position.  The Court gave credence to SoCalGas’ position that placing the plaintiff in the full-time position “would have constituted a promotion in violation of the company’s collective bargaining agreement.”

• SoCalGas was not required to extend the plaintiff’s leave “until a suitable position became vacant,” because but the plaintiff never requested additional leave, and because the plaintiff was unable to return to his prior job as a meter reader.  The Court stated that the plaintiff did not have any legal authority for the position that SoCalGas was required to extend leave until a new position opened up for which the employee was qualified.

As to Dushman’s interactive process claim, the Court of Appeal explained that the “process is a two-way street, obligating both the employer and employee to communicate openly and fairly to identify an accommodation that will allow the employee to perform the essential functions of the job.”  The Court expressly rejected the Dushman’s that there were triable issues of fact regarding SoCalGas acting in bad faith during it.  Specifically:

• SoCalGas did not act in bad faith by giving the plaintiff deadlines while discussing his work status.  The Court held that “Dushman has not shown that the deadlines imposed were unreasonable or insufficient to accommodate his disability.” 

• SoCalGas did not act in bad faith not giving the plaintiff additional time to prepare for the cashier interview, because the plaintiff never requested additional time nor did he disclose that he was nervous about driving to the interview. 

• SoCalGas did not act in bad faith by not allowing the plaintiff to re-take the typing test, because there were no open clerical that were “at the same level” as the plaintiff’s prior position. 

• SoCalGas did not act in bad faith by communicating with Dushman regarding the interactive process before the plaintiff was cleared to return the work.  The Court found that SoCalGas’ communications with the plaintiff “after he had been on leave for six months from a position to which he admittedly could not return” were not demands to start working before he was able to work, but were rather to commence the interactive process.

As to the remaining claims for failure to prevent discrimination and wrongful termination, the Court found that they were dependent on the allegations of the previous claims, and that they too failed.

Lessons Learned and Practical Advice for Employers

Although this opinion is favorable for employers, it highlights that litigation of the interactive process is highly fact dependent.  Communications exchanged between employees and employers are critical and in many cases can be dispositive on the issue of good faith.  We recommend the following best practices:

• Employers should keep an accurate paper trail of employee requests for reasonable accommodations and company responses to same.  Notes of the interactions and letters sent back and forth should be preserved, as they will be useful for attorneys during depositions of the aggrieved employee and human resources personnel.

• Employers should be proactive, but cautious, in reaching out to employees who are on medical leave to follow up on their conditions and to commence the interactive process. 

• Employers should communicate often and in a positive fashion during the interactive process.  Setting deadlines for employee responses during the interactive process is fine, but employers should remain flexible.

• Employers should have clear guidelines about what positions employees are qualified to fulfill to expedite the process of finding suitable alternate positions for employees who are unable to return to their former positions.