Friday, May 4, 2018
Page 1
C.A. Affirms $723,746 Award for Firing Employee on Medical Leave
Says Absent Staff Member Would Not Have Automatically Become Permanent Employee One Year From Starting on the Job; Leave Time Is Deducted From Probationary Period
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday upheld a $723,746 award to a woman who went on a four-month medical leave eight months into a one-year employment probationary period and was fired on the theory that she otherwise would otherwise have automatically become a permanent employee without ample opportunity to review her performance.
Justice Eileen Moore of Div. Three wrote the opinion, affirming the decision of Orange Superior Court Judge Kim Garlin Dunning, following a court trial, in favor of plaintiff Marisa Hernandez against the Rancho Santiago Community College District. Hernandez was hired in 2013 as an administrative assistant.
Her work was to be reviewed at the three-month, seven-month, and 11-month junctures. Nonetheless, no review took place at the three-month or seven-month points.
If she passed muster, she was to become a permanent employee after 12 months on the job.
Knuckle Replacement
Hernandez, with the district’s permission, went on leave after being at her post slightly more than eight months in order to have a knuckle—injured during previous employment with the district—replaced. It was anticipated she would return right around the one-year anniversary of her latest employment.
However, shortly before the one-year mark was reached, she received a letter from the human resources department telling her she was fired. Hernandez was told in a telephone conversation with the person who signed the letter that she should have “known better than to take a personal leave” while on probation.
Hernandez sued under the California Fair Employment and Housing Act (“FEHA”) based on a failure to accommodate.
Dunning’s Decision
In a statement of decision, Dunning said the district “had the option to deduct the time she was not able to work from her one-year probationary period or extend the probationary period by the number of days [Hernandez] was off work.”
The district argued that it was forced to terminate Hernandez’s employment based on Education Code §88013(a) which provides that a district must formulate rules under which probationary employees will be “designated as permanent employees of the district after serving a prescribed period of probation which shall not exceed one year.” If it had not fired her, the district maintained, she would have become a permanent employee one year after she was hired without an adequate opportunity to determine her fitness for the job.
“We agree with the trial court that Education Code section 88013, subdivision (a), did not require the district to either terminate Hernandez’s employment or make her a permanent employee on the anniversary date of her hiring,” Moore said, declaring:
“We conclude that when a probationary employee suffers a temporary total disability requiring absence from work for an extended period of time, that period may be deducted from the employee’s probationary period.”
District’s Protest
The district protested that it did accommodate Hernandez by allowing her to go on leave. Moore responded:
“Yes, the district accommodated Hernandez by giving her time off for her surgery, but the accommodation can hardly be considered reasonable when it included the consequence that she would lose her job if she took the time off to undergo surgery.”
She said this view is bolstered by looking at Government Code §12940(n) which requires an employer to “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations” where the person has “a known physical or mental disability or known medical condition.” Moore italicized the word “effective” and observed:
“An ‘accommodation’ that leads directly to termination of employment is not an effective accommodation and is not reasonable under the FEHA.”
Hernandez sued both for failing to accommodate and failure to engage in the interactive process.
Rather than “sitting down with the employee and working out an effective accommodation,” the jurist said, “the district slammed and locked the door.”
The case is Hernandez v. Rancho Santiago Community College District, G054563.
Sherman Oaks attorney Robert S. Scuderi represented Hernandez. Jeffrey P. Thompson and Steven J. Lowery of the Huntington Beach firm of Declues, Burkett & Thompson acted for the college district.
Copyright 2018, Metropolitan News Company