The Impact of a WC Disability Rating on FEHA Obligations
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- Published on Tuesday, 24 May 2011 04:42
The recent California appellate court decision, Cuiellette v. City of Los Angeles, No. B224303 (Cal. Ct. App. Apr. 22, 2011) is an important case for employers because it highlights the fact that a workers' compensation permanent disability rating (even one as high as 100%) does not mean that an employee cannot work in terms of an employer's obligations under the Fair Employment and Housing Act (FEHA)/Americans with Disabilities Act (ADA). Significantly, under the workers' compensation system, the focus is on whether the employee can perform the usual and customary duties of the "job of injury." However, pursuant to the FEHA and ADA, the focus is on what the employee can do in terms of their original job, or any other vacant, alternative position. In essence, workers compensation looks at what the employee can no longer do while FEHA/ADA analyze what the employee can still do. Therefore, employers must exercise caution when considering return to work requests from injured workers, and avoid summarily denying the request based upon the disability alleged in the workers' compensation case....
Court Finds No FEHA Violation Because Employer Properly Engaged in the Interactive Process
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- Published on Friday, 29 April 2011 19:15
The Department of Fair Employment and Housing ("DFEH") and Steven J. Carauddo appealed a district court's grant of summary judgment in favor of Lucent Technologies, Inc. ("Lucent"), Carauddo's former employer. Carauddo claimed that Lucent terminated him in violation of the California Fair Employment and Housing Act ("FEHA"). In addition, the DFEH challenged the district court's finding of diversity jurisdiction. Carauddo worked as a telecommunications installer for Western Electric, Lucent's predecessor. An installers duties consist mostly of physical functions such as running cable, drilling holes, setting frames and wiring cell cabinets. These activities require an installer to be able to lift and maneuver items over 30 pounds. While performing his job, Carauddo suffered a back injury and took a medical leave of absence beginning in January of 2005. In these situations, Lucent requires that a member of their medical department, usually a nurse, stay in communication with the employee throughout the disability period. Over the next few months, Lucent received varied work restrictions from Carauddo's health care provider that ranged from no bending, twisting and lifting over 10 pounds to occasionally lift or carry weights from 21 to 50 pounds. Lucent sought clarification from the medical provider and then advised Carauddo that the work restrictions could not be accommodated. Eventually, Carauddo was terminated on January 25, 2006. In March of 2006, Carauddo was cleared by his physician to return to work with no restrictions. When Lucent did not reemploy Carauddo, he filed a complaint with the DFEH. The district court held that during the disability period Lucent communicated frequently with Carruddo, that "Lucent reasonably accommodated Carruddo, and that DFEH failed to establish that Lucent's legitimate reason for terminating him was merely pretextual."...
The City Of Los Angeles Must Pay $1.5 Million For Disability Discrimination
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- Published on Monday, 25 April 2011 22:52
The City of Los Angeles ("City") filed an appeal from a judgment of $1,571,500 in favor of plaintiff, Rory Cuiellette ("Cuiellette"), a Los Angeles Police Department (LAPD) officer, on his claims of disability discrimination and failure to accommodate a disability under the California Fair Employment and Housing Act (FEHA). Specifically, on appeal, the City argued that substantial evidence did not support the trial court's liability finding because the evidence showed that Cuiellette was unable to perform the essential functions of a police officer with or without a reasonable accommodation. Cuiellette suffered a workers' compensation injury and was placed on disability leave. After his workers' compensation case was resolved with a finding of "100% disability," the City accepted his request to return to work. Cuiellette returned to work with a note from his physician authorizing him to perform "permanent light duty-administrative work only." The note did not specify any particular work restrictions. The City then assigned Cuiellette to the "court" or "renditions" desk in the fugitive warrants division, a purely administrative position requiring no field duty. The City had a long standing practice of accommodating police officers by placing them into light-duty positions that did not require many of the essential functions of a sworn police officer such as making arrests, taking suspects into custody and operating vehicles in emergency situations. Although there was no dispute that Cuiellette could not perform these essential functions of this position, Cuillette's disability did not prevent him from performing the essential functions of the light-duty administrative position. However, Cuiellette worked less than five days when the City realized that he had a 100% disability rating in the workers' compensation case, and thus sent him home. Significantly, on appeal the court held that whether or not a worker with a 100% disability rating can perform light duty is "beside the point because workers' compensation and FEHA require separate inquiries...the question is whether Plaintiff's medical restrictions prevented him from performing the essential functions of the position that he held or desired to fill."...
Employer Has Burden of Proof on FMLA Reinstatement Issue
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- Published on Tuesday, 22 March 2011 05:59
The 9th Circuit Court of Appeals, on an issue of first impression, concluded that when asserting a legitimate business reason as a defense to denying an employee reinstatement upon return from an approved Family and Medical Leave Act (FMLA) leave, the burden of proof rests with the employer to establish the legitimacy of the reason for the denial of reinstatement. In this case, Diane Sanders (Sanders), a former employee of the City of Newport (the City), sued the City when it refused to reinstate her after she took an approved medical leave pursuant to FMLA. Sanders, who had worked as a billing clerk for the City for approximately 10 years, developed a chemical sensitivity to a certain paper the City began using. As a result, Sanders' physician certified her for a one month leave. After the leave, the physician reported that Sanders could return to work as long as she was not exposed to certain chemicals. While Sanders was on leave, the City stopped using the particular paper to which she claimed a chemical sensitivity. However, the City argued that it could not provide a safe workplace for Sanders because she suffered from multiple chemical sensitivities. Sanders was ultimately terminated by the City due to her work restrictions. The 9th Circuit found that an employee can prove a FMLA interference claim, by using either direct or circumstantial evidence, or both. Further, when an employer fails to reinstate an employee who has been out on FMLA leave (to his/her original, or an equivalent, position), the employee establishes a prima facie case of interference with FMLA rights. However, the 9th Circuit had not previously determined which party would have the burden of proof when an employer raises a legitimate business reason defense for not reinstating the employee. In this case, the court concluded that "if an employer denies an employee reinstatement on the ground that the employee cannot perform the essential functions of the employee's position, the burden of proof rests with the employer, not the employee," on the issue of whether there was a legitimate business reason for denial of reinstatement....
Weekly Calls to Employee on FMLA Leave May be Deemed Interference
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- Published on Thursday, 10 March 2011 05:32
In an opinion from the United States District Court, W.D. Arkansas, Texarkana Division, the court found that weekly calls from an employee's supervisor inquiring as to when she would return to work could be deemed sufficiently "discouraging or chilling" of her exercise of rights pursuant to the Family and Medical Leave Act (FMLA), that they may have interfered with her rights under FMLA. The Court noted that "interference" includes not only refusing to authorize leave, "but discouraging an employee from using such leave." In this case, the employer called the employee on a weekly basis. The employee claimed that with each subsequent call she felt harassed due to the calls, and became increasingly worried about keeping her job. At one point she asked if her job was in jeopardy, and the response from her supervisor was to return to work as soon as possible. The employee claimed that she was discouraged from using the FMLA leave to which she was entitled, because of the weekly telephone calls. It is interesting to note that the employee did not claim that she did not receive the FMLA leave, only that she was discouraged from taking the leave by the frequent telephone calls. In fact, the employee did not return to work before her physician deemed her capable of returning. However, the point that the Eighth Circuit makes is that the FMLA does not always require that an employee be denied FMLA leave before establishing a FMLA interference claim, because interference may include discouraging an employee from using FMLA leave, as well as manipulation by an employer to avoid responsibilities under FMLA....
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