Tuesday, January 15, 2013

FEHA: Bad Facts Make Bad Law

This is not about a workers' compensation case, but it is about disability discrimination and what I perceive as a good example of how job dissatisfaction clouds judgment.

The consequence is case law that probably isn't the clearest statement of the law, and just may make it a little more difficult for injured workers to claim a violation of the California Fair Employment and Housing Act (FEHA). 

The reason is because a claim of total disability means that one can not work, which means that one can not perform the essential functions of a job, and thus there could be no violation of FEHA. T'his would seem evident, but the timing of the claim of inability to work is the salient issue and failure to elucidate on that prime date can be fatal to a claim.

The facts in the U.S. 9th Circuit Court of Appeals ruling in Lawler v. Montblanc North America, No. 11-16206 are important because the court fails to distinguish WHEN the claim of disability is relevant to return to work, and because the plaintiff failed to meet the initial burden of proof leading to this ambiguity.

Lawler had worked as the manager of the Montblanc boutique at the Valley Fair Shopping Center for roughly eight years.

In June 2009, Lawler's doctor diagnosed her with a chronic condition known as psoriatic arthritis and recommended that Lawler cut back on her hours. Store managers typically worked 40 hours per week, but for the store's peak sales period – from Thanksgiving until New Year's – would work 60 to 70 hours per week.

Lawler contacted her regional manager to request a reduced work week of 25 hours, and the manager asked her to provide additional information about the nature of her impairment and the accommodations she would require.

A few days after receiving the manager's response, Lawler fell while at home and broke two toes. She said her arthritis was to blame, since it had caused her hip to give out while she was turning to grab her purse.

A podiatrist set her foot and said Lawler could return to work on Sept. 2, 2009.

Lawler then called her regional manager to request a temporary disability leave. The manager asked Lawler to fax over documentation regarding her foot injury. Since Lawler did not have a fax machine, she drove to the Valley Fair store to use the fax machine there.

While Lawler was at the store, Montblanc's President and Chief Executive Officer Jan-Patrick Schmitz, and Vice President of Retail Mike Giannattasio, happened to drop in.

Schmitz allegedly confronted Lawler about her manner of dress, her failure to have the company's newest eyewear products on display, and the way repair parts were being stored. Lawler said Schmitz spoke to her in a tone that was "intimidating, abrupt," and "gruff."

Lawler said he also made other demands. According to her version of events, Lawler told Schmitz she was on disability leave and couldn't do the work, but Schmitz told her to "do it or else."

After that incident, Lawler complained about Schmitz's conduct to her regional manager and she obtained a letter from her doctor advising that she take an extended leave of absence through Jan. 5, 2010.

Montblanc sent the doctor a letter asking if there were any accommodations it could make that would allow Lawler to be regularly present at the store and performing her job duties. The doctor responded that Lawler needed to remain off work until January.

A week later, Lawler's regional manager called her and told her that she was being terminated, effective Oct. 31, 2009. Montblanc did not hire a replacement manager until May 2010.

After her termination, Lawler filed a complaint with the California Department of Fair Employment and Housing against Montblanc and Schmitz. She received a right-to-sue letter and then filed suit in the Santa Clara County Superior Court, asserting claims for discrimination, retaliation, harassment and the intentional infliction of emotional distress.

Montblanc removed the case to federal court where summary judgment was granted in favor of the company.

The trial court said it was incumbent on Lawler to show that she was capable of performing these in-store job duties, but Lawler failed to show she was capable of working in any capacity at all.

On appeal the 9th Circuit noted that Lawler admitted that her arthritis prevented her from working at all, so it did not matter that Montblanc did not offer to accommodate her. Lawler had not met her initial burden of proof.

The criticism of the case from outside observers is that the court did not distinguish the timing of the disability status - i.e. at what point was there a declaration that Lawler would be able to return to work despite her disability? Note that the facts show that Lawler was taken off work until Jan. 2010, but that the company terminated her in Oct. 2009 and didn't hire a replacement until May 2010.

There does not appear to be any evidence either that Lawler was ready to return to work Jan. 2010, or that she was permanent totally disabled from returning to work in any capacity after that date.

But, other observers note that there are several cases across the country holding that a managerial position in a retail establishment inherently requires a high number of hours per week and that's an essential function of that job, so a person who needs a reduced schedule is not qualified to the position.

What it all really comes down to is basic evidence at the time the case is brought - Lawler needed to prove at the time she filed her case that she was capable of performing the essential functions of the job, including working up to 70 or 80 hours per week. According to the court opinion Lawler admitted that she couldn't work at all. We don't know when this admission occurred, but it obviously was a paramount fact in the court's ruling.

The lesson for injured workers is to make yourself available for work, or at least present evidence of capability to perform essential job functions. Then it's up to the employer to decide whether or not they will risk failure to reasonably accommodate.

While injured worker representatives may view the Lawler case as a Catch-22 situation, I see it as a common sense application of the law to the facts. If you, as an injured worker, claim an inability to work, then you can't complain later of FEHA discrimination where no reasonable accommodation would be applicable since there is no ability to work at all.

What really happened in the Lawler case is that she jumped the gun and brought suit too early. Reading between the lines, she was upset at her treatment by CEO Schmitz.

Personality conflicts make poor reasons to sue but I suspect this is a more frequent cause of suit than is generally recognized. The old law school saying - bad facts make bad case law - applies here.

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