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Gordon & Rees Los Angeles Team Wins Defense Verdict in Disability Discrimination Case

Gordon & Rees Los Angeles partner Stephen Ronk and associate Erika Shao won a defense jury verdict on May 30 after a two-week disability discrimination and failure to accommodate trial in Ventura County Superior Court.

The trial presented some challenges to the defense as it was undisputed that the plaintiff was a valued employee with a very good performance history. It also was undisputed that she suffered from a serious medical condition that resulted in surgery to remove one of her kidneys. The plaintiff had only been employed with the client, a regional home appliance retailer, for approximately nine months before becoming ill. As such, she did not qualify for protected leave under the federal Family and Medical Leave Act or California’s Moore-Brown-Roberti Family Rights Act. Company policy did allow for a six-week unpaid medical leave for employees not entitled to those statutory leaves, however.

When the plaintiff first became ill and was hospitalized for 10 days, her physician placed her off work. Her doctor extended the leave multiple times until it exceeded the six-week leave allowance. At seven-and-a-half weeks, the plaintiff’s doctor provided another note extending the leave an additional month during which time the plaintiff was to have surgery to remove the affected kidney. The company had held her position open for the seven-and-a-half weeks, but could no longer do so due because of the significant impact being shorthanded was having on the operations of her department.

The company informed the plaintiff by letter that it “cannot accommodate the extra time due to the necessity of having to cover your duties” and “current business needs dictate that we fill your position.” The letter also advised that “when you have fully recovered, we encourage you to please contact us and inquire about and/or apply for any open position that we may have that you feel qualified for.” Accompanying the letter was a “Change in Relationship” form advising the plaintiff that her new relationship with the company was viewed as a leave of absence with an unknown return date. The company witnesses testified that the plaintiff was not terminated, but rather placed on an extended leave that offered no guarantees of re-employment, but the ability to return to a vacant position.

The plaintiff contended that she had been terminated and that upon receiving the letter prior to her surgery, and while still on leave, she felt betrayed and decided not to contact the company when she was, in fact, able to return. She was cleared to return to work two-and-a-half months after the final doctor’s note, but she refused to contact the company. Company witnesses testified that there were open positions for her and that she would have been placed in one of them without any loss of time in service, and at the same pay, had she called.

The plaintiff waived a jury on the day of trial, but the defense insisted on a jury trial. The plaintiff proceeded with three causes of action for disability discrimination, failure to accommodate a disability by providing further leave time, and failure to engage in a good-faith interactive process to accommodate a disability. At the conclusion of the evidence, the defense made the strategic decision to waive the affirmative defense of undue hardship as a reason not to accommodate the plaintiff’s leave request and argued instead that she had been fully accommodated. The defense further argued that it was the plaintiff who made the decision to terminate the interactive process by not calling and seeking an open position when she was cleared to return to work, and that it was her conduct that resulted in her loss of employment, not the company’s conduct.

The jury deliberated for less than two hours and ruled that the company had not terminated the plaintiff’s employment, had provided a reasonable accommodation, and had engaged in a good-faith interactive process with her for a complete defense verdict rendered on May 30.

Stephen E. Ronk
Erika L. Shao