DFEH Claim filed By Sacramento Firefighter, Part 7 of 19

(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.)

B. Failure to Accommodate / Failure to Engage in the Interactive Process

Tellingly, the defendant’s moving papers are completely devoid of any argument in favor of its assertion that plaintiff failed to identify acts in support of his claims for failure to accommodate or failure to engage in the interactive process within one-year of the June 10, 2005 DFEH filing. This is because the heart of those claims occurred within the one-year statutory period. This is consistent with the jury’s special verdict.

The chain of events started when plaintiffs treating physician released him to return to work, without restrictions, on February 2, 2004. The defendant did not permit plaintiff to return from his medical leave of absence. Instead, on February 26, 2004, the defendant directed plaintiff to take a fitness-for-duty evaluation. On April 6, 2004, the evaluator concluded that plaintiff was presently unfit, but offered no opinion on his prognosis. Regardless, on April 26, 2004, the defendant submitted an application for involuntary retirement without even consulting plaintiff. Again, this was done even though the City had no information about Mr.Carter’s prognosis for recovery. The jury found that this was an act of disability discrimination and retaliation.

Thereafter, Mr.Carter made good faith attempts to overturn the impact of the fitness-for-duty evaluation by attempting to engage the defendant in the interactive process. He did this on August 10, 2004, by submitting a note from his treating doctor indicating that he had been re-evaluated, that his perceived mental health issues were in remission, and that he was ready to return to work. It is well settled that providing an employee a protected leave of absence (and allowing the employee to return from a medical leave when he or she is healed) is a form of reasonable accommodation under the FEHA. See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 226; EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship, #915-002 (10/17/2002). Despite this medical release, however, the City did not accommodate Mr.Carter (i.e. it did not allow him to return from his medical leave). Mr.Carter also made good faith efforts to convince the City to send him to an independent physician for evaluation of his ability to function as a firefighter, despite any perceived mental disability. Director Moore rejected that reasonable request for accommodation on July 12, 2004:

With regard to your request to seek an Agreed Upon Medical Examiner (AME) to properly determine [your] employment status, you were informed that this cannot be accommodated. At trial, Ms. Ezell admitted that Mr.Carter’ request was reasonable, and that she wasn’t entirely clear on why the request was denied.

The evidence at trial, read in the light most favorable to the plaintiff, also makes it clear that Director Ezell rejected plaintiffs good faith attempts to convince the City to have him evaluated by a neutral and independent public safety psychiatrist in October of 2004, in lieu of having the Retirement Board make a decision.

In the aftermath of finding out that the City was applying for his retirement, Mr.Carter requested accommodation by asking to be reassigned to a Fire Inspector position. He also pointed out that he had other talents outside of firefighting and that he would consider a civilian position. That request was ignored by the City. Although there was no specific date identified at trial that Mr.Carter’ requested a transfer as accommodation, the trial testimony, read in the light most favorable to plaintiff, makes it clear that it occurred after April 26, 2004 and that it was an ongoing request (requiring an on-going response) that continued well into the one-year statutory period. (See Part 8 of 19.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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