Metropolitan News-Enterprise


Friday, October 16, 2009


Page 1


C.A. Upholds Damages for Not Letting Employee Use Restroom




The First District Court of Appeal yesterday ruled that a cancer patient who was not allowed to take a restroom break at work was entitled to damages for disability discrimination.

Div. Four affirmed a $200,000 judgment in favor of an employee of an Albertson’s store in the Bay Area community of Fairfax. The former Albertsons stores in that area are now owned by Save Mart Supermarkets.

The woman, identified only as A.M., began working for Albertsons in 1987 and at the Fairfax store in 1999. After being diagnosed with cancer in 2003, she took a medical leave and underwent treatment.

She explained at trial that radiation and chemotherapy treatment affected her salivary glands, necessitating that she constantly drink water and take frequent bathroom breaks. When she returned to work in January 2004, she told her superiors of the situation and was given permission to keep water at the checkstand, which the company normally does not allow, and was told that she could go to the restroom as often as needed as long as she informed a manager.

There were no problems for 13 months, she explained, until one evening when there were only three employees present—A.M., a courtesy clerk who was not allowed to operate a register, and the person who was in charge of the store when more senior managers were not present, Kellie Sampson.

Assistance Requested

Sampson had not worked with A.M. before and was apparently not told about her condition or the accommodation that was being made as a result. When A.M. called her on the intercom to explain that there was a line of customers and that A.M. needed to use the restroom, Sampson—who was at the back of the store—allegedly told her she was busy and hung up.

A.M. testified that she did not go to the bathroom, and that she wet herself. She began to cry, called her husband and went home.

She said she had not told Sampson about her accommodation, because she assumed the company would not have put Sampson in charge of the store without telling her.

She testified that she had a number of emotional problems after the incident, becoming fearful and withdrawn and unable to sleep, imagined that she had a bad smell, had to be committed to a psychiatric hospital for a few days, and remained in therapy after she was released.

She eventually returned to work after the company agreed that she could work the day shift to make it easier to use the restroom and that she would not have to work with Sampson.

She sued, charging two violations of the Fair Employment and Housing Act—failure to accommodate her disability based on the February 2005 incident, and failure to engage in an interactive process when she first tried to return to work.

Emotional Problems

There was testimony during trial that Sampson was not the only person who had charge of the Fairfax store but was unaware of the arrangements the company had made to accommodate the plaintiff’s disability. The plaintiff’s lawyers presented evidence that while A.M. said she had an abusive father, grew up in El Salvador during the country’s civil war, and had a prior history of depression, most of her emotional problems were related to the incident.

An expert testified that she suffered from posttraumatic stress disorder and was constantly reliving the February 2005 incident. Defense experts said she was mentally fragile and suffered from anxiety disorder before the incident occurred.

The Marin Superior Court jury found that there was a failure to accommodate that was a substantial factor causing harm to plaintiff, but rejected her claim regarding her first attempt to return to work. A.M. was awarded $12,000 for past wage loss, $40,000 in future medical expenses, and $148,000 for past emotional distress.

 The defense, which had moved for nonsuit at the close of the plaintiff’s case, argued on appeal that the suit should have been thrown out because the plaintiff was accommodated as a matter of law.

Justice Timothy Reardon disagreed, explaining that once the parties agreed as to how the plaintiff’s disability would be accommodated, she was not obligated to engage in any further interactive process.

“None of the legal authorities that Albertsons cites persuade us that the legislature intended that after a reasonable accommodation is granted, the interactive process continued to apply in a failure to accommodate context,” the justice wrote. “All of the case authority that Albertsons cites in support of its novel claim relate to the determination of a reasonable accommodation or the reconsideration of that determination after a reasonable accommodation fails.”

Reardon also rejected the argument that a single incident could not, in the context of a lengthy period of accommodation, form the basis of a failure-to-accommodate claim.

The justice explained:

“In essence, Albertsons reasons that the FEHA allows for at least one failure to accommodate, if a pattern of successful accommodation also is shown. In order to be entitled to a nonsuit, Albertsons must show as a matter of law that under no circumstances could a single failure to accommodate support a finding of a failure to accommodate....

“In our view, to adopt this interpretation of a failure to accommodate would be inconsistent with the FEHA. The statute does not speak of a pattern of failure and Albertsons cites no case authority supporting its interpretation of the FEHA failure to accommodate statute requiring one.”

Such an interpretation, he added, would be inconsistent with the Legislature’s intent that disabilities be reasonably accommodated.

 “As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated,” Reardon said. “ When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity.”

The case is A.M. v. Albertsons, LLC, 09 S.O.S. 6015.


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