Metropolitan News-Enterprise


Tuesday, September 28, 2021


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Employer Properly Fired Worker Upon Return From Leave Based on Pre-Leave Deficiency

Panel Rejects Contention That Accommodation Was Required in Form of More Probationary Time to Prove Ability to Improve


By a MetNews Staff Writer


The Court of Appeal for this district yesterday rejected the inventive contention that where a shoddily performing probationary employee goes on medical leave, then returns to work, the obligation under the Fair Employment and Housing Act of providing “reasonable accommodation” requires that the employee be given time to improve his performance rather than being fired almost immediately.

Orange Superior Court Judge James L. Crandall, sitting on assignment to Div. One, wrote the opinion which was not certified for publication. It affirms an order by Los Angeles Superior Court Judge Richard Burdge granting a summary judgment to the employer, Albertsons, LLC.

Seeking reversal was the former employee, Cristian Delgado Barrera, who worked the night shift at a distribution center in Brea. During the eighth week of his 90-day probationary period, he sprained his ankle and, as an accommodation, was granted medical leave on April 24, 2018. On May 31, a clinic cleared him for return to work.

Late for Work

On June 4, Albertsons’s management, in email correspondence, expressed concern that Barrera had not shown up; a manager phoned him the next day and Barrera said he would be in the next day; the management initiated the termination process on June 5. Barrera came to work, late, on June 6; he was fired on June 7 based on inadequate performance prior to going on leave.

He was denied reasonable accommodation, Barrera contended on appeal, because he was not given additional time to prove his fitness for the work tasks.

Crandall wrote: “We have been provided with scant authority for the proposition that an employer must provide a poorly-performing employee, who is placed on a medical leave eight weeks into his 12-week probationary period, with more time to elevate his performance upon return from that leave. The trial court properly dismissed Barrera’s cause of action for failure to accommodate under the FEHA.”

Case Cited

In support of his position, Barrera cited the May 3, 2018 Court of Appeal opinion by Justice Eileen C. Moore of the Fourth District’s Div. Three in Hernandez v. Rancho Santiago Community College District. That opinion affirmed a judgment in favor of a probationary employee who was fired while on a disability leave.

The employer’s rationale was that if her employment had not been terminated, the one year anniversary of her hiring would have been reached and she would then have automatically become a permanent employee. Rejecting that reasoning, the trial court held that the employer could have accommodated the employee by simply extending the probationary period by the months she had been on leave, and the Court of Appeal agreed.

Representing the appellant in that case was veteran Sherman Oaks attorney Robert S. Scuderi, who also represented Barrera in the present case. Crandall found the present case was unlike 2018 case, explaining:

 “The facts here stand in stark contrast to Hernandez. Barrera had a consistently-poor track record of weekly Albertsons performance evaluations accrued before his disability occurred. Indeed, all of his evaluations showed that his…performance fell below acceptable standards for probationary order selectors. Moreover, after being cleared to return to work, Barrera did not even timely report to work.

“Under these circumstances, Albertsons was not required to offer an additional accommodation that was likely to be futile….”

Interactive Process

Barrera also contested Burdge’s ruling for Albertsons on his cause of action for failing to engage in an interactive process.

“Barrera’s complaint is that Albertsons management was working ‘behind the scenes’ on ways to terminate him while he was out on disability,” Crandall related, remarking: “Yet, Barrera provides no authority for the proposition that an employer cannot begin to consider termination of a probationary employee who had already accumulated multiple performance warnings. The only legal authority offered by Barrera to demonstrate error is a single, general reference to Hernandez—without so much as a pinpoint citation.”

The case is Barrera v. Albertsons, B308657.

Leigh Ann White of the Irvine firm of Carothers DiSante & Freudenberger LLP represented Albertsons.


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