(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)
Significantly-and fatally for the defendant’s statute of limitations argument-the jury returned a verdict in favor of the plaintiff on his claim for failure to engage in a good faith interactive process and failure to accommodate-both of which were clearly based primarily on events that occurred within one-year of the June 10, 2005 DFEH filing. Moreover, the interactive process and failure to accommodate claims were so closely connected to the disability discrimination and retaliation claims as to be almost derivative of them. It was plaintiffs contention that the City’s failure to accommodate him and failure to engage him in the interactive process was simply part of a retaliatory and discriminatory course of conduct that was designed to prevent him from returning to work. Indeed, the defendant’s failure to accommodate plaintiff and failure to engage him in the interactive process had the effect of cementing the impact of the retaliatory and discriminatory application for disability retirement. Put another way, the result of the City’s failure to accommodate Mr.Carter and failure to engage him in a good faith interactive process, was that the City persisted into the one-year statutory period with what the jury found was a discriminatory and retaliatory retirement application. A jury had every reason to conclude that these various acts of discrimination were sufficiently similar in kind to establish a continuing violation.
In summary, based on the chronology of events at trial, which is outlined in Section III, it is clear that a jury found that the defendant committed numerous unlawful acts within the limitations period, and that these acts were sufficiently similar in kind to the discriminatory and retaliatory acts that occurred prior to June 10, 2004 [particularly the initial fitness-for-duty referral (2/26/04) and the submission of a disability retirement application (4/26/04)] to constitute a continuing violation.
It should be pointed out that the California Supreme Court has interpreted this “sufficiently similar in kind” prong of the continuing violation test liberally, “recognizing … that similar kinds of unlawful employer conduct, such as harassment or failures to reasonably accommodate, may take a number of different forms.” See Richards, supra, at 823.
2) Acts Occurred with Reasonable Frequency
The alleged illegal acts described above clearly occurred with reasonable frequency. As can easily be observed by referring to plaintiff’s chronology at III of these opposition papers, there were numerous alleged illegal acts that occurred on the following dates: February 2, February 26, March 30, March 31, April 6, April 26, May 26, July 12, August 10, August 11, September 4, and October of 2004.
3) The Acts had not Acquired a Degree of Permanence
Plaintiffs employment did not end when he was sent to a fitness for duty evaluation in February of 2004, or even when the City submitted an involuntary disability retirement application on April 26, 2004. There was no permanence to his predicament until he was formally retired in January of 2005. Prior to that, Plaintiff remained an employee, and he did everything in his power to return to work. That is, he did everything he could to make sure that his predicament didn’t become permanent. He made good faith attempts to overturn the impact of the fitness-for-duty evaluation by submitting notes from his doctor indicating that his perceived mental disability issues were in remission. He made good faith efforts to convince the City to send him to an independent physician for evaluation. He requested reassignment as an accommodation, suggesting the position of Fire Inspector and pointing out that he had other talents outside of firefighting. Likewise, he made good faith efforts to convince the City to retract its retirement application. None of this worked, but it was reasonable for plaintiff to fight for his job until it became futile, which was arguably right up until January 20, 2005. (See Part 12 of 19.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.