Metropolitan News-Enterprise


Wednesday, October 11, 2017


Page 3


Fired Janitor May Keep $550,000 FEHA Award—Appeals Court

Finds Substantial Evidence Supports Verdict Although Plaintiff’s Own Doctor Said in a Report That His Patient Was Unable to Perform Manual Labor; Discounts Disability Claims


By a MetNews Staff Writer


The Fourth District Court of Appeal has affirmed a $550,000 award to a man who was fired as an elementary school janitor after his own doctor declared that an injury rendered him incapable of performing manual labor.

Div. Two, in an unpublished opinion by Justice Carol D. Codrington filed Friday, rejected the contention by the Chino Valley Unified School District that the terminated employee, Joseph Snead, was no longer capable of doing the job.

The appeals court did not find meaningful that Snead’s doctor had filled out disability insurance applications saying that the patient was disabled. The representation that he was disabled, Codrington said, was “not inconsistent” with Snead’s stance that he was capable of working if adequate accommodations were provided.

Doctor’s Note

After Snead incurred a job-related back injury in January 2010 (for which he did not seek worker’s compensation), the janitor’s physician, Dr. Joseph Lai, on Feb. 10, 2010, wrote a note setting forth work restrictions. These precluded the use of ladders, otherwise being at heights, or bending or twisting his neck. Lai called for Snead to be placed on “light duty for life.”

June 2010, however, in a “Physician’s Report on Disability,” Lai went further and said that Snead could not perform any manual labor.

The district relied on that report in terminating Snead’s employment. It also made note that the district’s manager of maintenance, operations and construction had determined that use of a ladder use could consume as much as two-and-a-half hours a day in changing light bulbs, “top-end cleaning,” and other tasks.

Snead sued under the California Fair Employment and Housing Act alleging disability discrimination, failure to accommodate, and failing to engage in the interactive process.

At trial, Snead testified that he believed he was able to work. He said changing light bulbs was a task he had performed only about once a month.

Jury’s Award

Following a two-week jury trial and three days of deliberation, the jury found in Snead’s favor on all causes of action. It awarded $217,000 in past lost earnings—based on his wages for five years— $217,000 in past noneconomic loss and $116,000 in future noneconomic loss, based on his testimony as to emotional distress over his termination.

In the opinion affirming the judgment, Codrington said:

“We conclude substantial evidence supports the jury’s finding that Snead could perform the essential functions of his job with reasonable accommodation. As a night custodian, Snead’s essential function was to clean classrooms and restrooms, sometimes using an extension pole or a step stool. He occasionally used a ladder for changing ceiling light bulbs about once a month. If necessary he could swap duties with another custodian or work as a team. The jury’s finding and verdict are supported by substantial evidence.”

Disability Claims

The jurors saw the disability claims, in connection with determining damages, and were presented with the question of their significance in determining liability. Codrington said:

“The jury rejected the District’s argument that the application for disability benefits demonstrated Snead’s inability to work with accommodations and awarded Snead his past lost wages.”

The finding was sustainable, she commented, because statements on the disability claims were not “ ‘totally inconsistent’ with the position Snead took in this case because the applications do not consider the role of reasonable accommodations in enabling Snead to work despite his disabilities.”

Codrington found relevant that “there was no evidence that Snead was approved for disability benefits,” that “there was no evidence at trial that Snead was ever successful in receiving disability benefits from either the Employment Development Department (EDD) or the CalPERS retirement system.”

Judicial Estoppel

On appeal, in arguing the import of the disability claims, the district sought to invoke judicial estoppel, which bars a position being taken in one proceeding that is at odds with one taken in a different proceeding. The doctrine is unavailable, Codrington said, because “an application to a state insurance fund is not a judicial or quasi-judicial proceeding.”

The case is Snead v. Chino Valley Unified School District, E064886.

The attorneys on appeal were Susan Knock Beck of the Riverside firm of Thompson & Colegate for the school district, and Tamara S. Freeze, Robert A. Odell and Angie M. Kwik of the Irvine firm of Workplace Justice Advocates, PLC, for Snead.

Snead’s Lawyer Comments

Odell said yesterday:

“We are thrilled with the decision from the Court of Appeal, which affirmed 100% of the jury’s 2015 verdict in favor of Mr. Snead. 

“It’s taken over seven years for Mr. Snead’s case to reach this point, but the Court’s strong support for his cause was well worth the wait. 

“The evidence presented at trial showed that, after sustaining a back injury at work that prevented Mr. Snead from climbing ladders, the District failed to accommodate his disability and refused to work with Mr. Snead in good faith in order to make any accommodation happen. 

“Changing light bulbs was almost never a part of Mr. Snead’s daily job duties as a night custodian, yet the District used his ladder restriction as an excuse to terminate his employment and ignored all of Mr. Snead’s proposed accommodations. 

“The District’s behavior was such a blatant violation of law that one appellate court justice commented ‘this case should have never even gone to trial.’

“Mr. Snead and his counsel thank the Court of Appeal for affirming the award in full as well as the jury and trial judge, Hon. Keith Davis, who presided over the 2015 trial and verdict.”


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