Bay Area Employment Lawyer Blog

Perhaps this case is an example of bad facts make bad law, or perhaps this panel was just kinda testy about the importance of attendance at work. Ms. Samper was a nurse who worked in the neo-natal intensive care unit of defendant Providence St. Vincent Medical Center. Due to an admitted disability, she needed some flexibility in attendance, meaning that she needed more sick days than was permitted under the hospital's policy. Before reading this opinion, and given the law in the Ninth Circuit, including the venerable case of Humphrey v. Memorial Hospitals, 239 F.3d 1128 (2001) (strongly worded opinion requiring a hospital to provide a reasonable accommodation to a medical transcriptionist including flexibility in an attendance policy) , I had no doubt that flexibility in an attendance policy at a hospital would be just the type of reasonable accommodation that the Ninth Circuit would uphold. Boy was I in for a surprise.

Ms. Samper, like Ms. Humphrey, suffered from a disability that made accommodations in the attendance policy a requirement for her to work. Once at work, there was absolutely no evidence that her performance suffered in any way. This type of accommodation seemed just what the doctor ordered. Not so, says the Ninth Circuit, making some very bad law in the process.

According to the Ninth Circuit, regular attendance is an "essential function" of the job of a NICU nurse. Thus, since Ms. Samper's disability impinges upon her attendance, the hospital need not accommodate her. The Ninth Circuit reached this opinion by relying upon the hospital's job description and supervisor say so (isn't that convincing!). The Ninth Circuit made fun of Ms. Samper's argument that, since all employees are permitted sick days and vacation and the hospital is able to accommodate this, it ought to be able to accommodate further absences due to Ms. Samper's disability.

Interestingly, there is absolutely no evidence that the care actually provided to the babies in the unit was compromised due to scheduling and/or absences by Ms. Samper or any of the other nurses. Indeed, these are highly trained professionals. The hospital states that understaffing compromises hospital care, but in no way suggested the hospital has actually ever suffered from understaffing.

This case starts by announcing, "This case tests the limits of an employer's attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential". Perhaps this result was reached because the record was bare on the side of the plaintiff's evidence. Perhaps this result was reached because there is really, truly something different about neo-natal nursing. Whether this is true or not, the Ninth Circuit has just made a mess of the law of reasonable accommodation, and looked to be a bit glib about the facts. Based on this case, do we now know that attendance is not an essential function for a medical transcriptionist, but it is for a neo-natal nurse? Or do we now know that under the facts submitted to the court in Ms. Samper's case, attendance was an essential function, but it may not be for a different hospital, a different person, a different department, a different disability/reasonable accommodation, and on a different record? All I know is that Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012), is bad law, neither well-reasoned nor providing specific enough guidance to employers, employees and lower courts.

Jody LeWitter
May 7, 2012

Mr. Cuiellette was a police officer employed by the City of Los Angeles. Due to an on-the-job injury, he was no longer able to perform the duties of a field officer. He filed a workers compensation claim and was rated 100% disabled. The City reassigned him to a light duty desk job, which he could perform. When the City realized that Mr. Cuiellette was rated as 100% disabled, it promptly ended his light duty assignment and sent him packing.

Mr. Cuiellette sued, claiming disability discrimination. He claimed that, regardless of the workers compensation disability rating for his officer job, he could do the essential elements of his light duty desk job. The jury agreed, resulting in a $1.5 million judgment, and an appeal. Cuiellette v City of Los Angeles, 194 Cal. App. 4th 757 (April 22, 2011).

The California Court of Appeals upheld the verdict. It declared that a "rating received in the worker's compensation proceeding was not, as a matter of law, a legitimate nondiscriminatory reason for an employer's adverse employment action." Indeed, an employer must engage in the interactive process, and carefully analyze whether an employee can perform the essential functions of his or her job, or other vacant jobs, with or without a reasonable accommodation, regardless of any disability rating. Here, in particular, the Court noted that the City of Los Angeles had a policy and practice of permitting injured employees to perform desk jobs on a long term basis. Thus, it was inappropriate to require that Mr. Cuiellette prove that he could perform the essential elements of his field job, rather than his desk job.

There are quite a number of employers out there that refuse to engage in the interactive process when an employee is found to be mostly disabled by the workers compensation system. The court Cuiellette established that this is wrong. In addition, Cuiellette makes clear that, in at least some instances, a temporary job may be as good as a permanent one. It is important for employees to be aware of their independent rights under the Fair Employment & Housing Act and the Americans with Disabilities Act when they become disabled, and to hold the employer accountable for fully and faithfully engaging in the interactive process.

Jody LeWitter
September 19, 2011

Ms. Wills worked for Orange County and was terminated for violating the County's policy against threatening conduct and/or violence in the workplace. Willis submitted evidence that her behavior in violation of the policy was due to a disability - her bipolar disorder. Wills also submitted evidence that the County was aware that she suffered from bipolar disorder, and that the disorder caused her threatening conduct. Wills v Superior Court, __Cal.App.4th ___ (April 13, 2010).

Before this case, no California court, nor any court interpreting California's Fair Employment & Housing Act, had ever ruled on the legality or illegality of taking action against an employee for conduct - considered by the employer to be misconduct - which was caused by a disability. The employer urged the court to adopt its position that, if the employer asserted that the firing was due to the conduct rather than the disability, its action was protected.

The Court of Appeals ruled for the employer, and declared that the employer's action in firing Ms. Wills for threating conduct did not constitute disability discrimination. The Court did, however, refrain from the wholesale adoption of the employer's position, refusing to extend its holding beyond the facts of the case. In other words, the Court stated that the termination was justified in the limited circumstances presented, where the conduct included threats of violence or violence.

The Court opined that "consistent with the federal courts' interpretation of the ADA, we interpret FEHA as authorizing an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers." The Court went on to warn, "We express no opinion on whether FEHA permits an employer to distinguish between disability-caused misconduct and the disability itself in any factual setting other than threats or violence against coworkers."

This holding should not, in any way, result in any further encroachments on the rights of disabled employees other than where violence or threats of violence occur. According to the Court, "We emphasize we are not presented with a situation involving misconduct impacting an employee's job performance the employer potentially could address through accommodation. For example, an employer could accommodate an employee whose disability caused chronic tardiness or absenteeism by altering the employee's work schedule." Let's just hope the courts draw the line tight here, and that this case is not a slippery slope to courts being tugged at by employers to find further reasons not to reasonably accommodate a disabled employee.

Jody LeWitter
May 26, 2011

In a somewhat tortured opinion, the Ninth Circuit approved a one strike rule for drug testing of applicants to become longshore workers. In Lopez v. Pacific Maritime Association (9th Cir. Mar. 2, 2011) --- F. 3d ----, 2011 WL 711884, Mr. Lopez applied to be a longshoreman in 1997, but was rejected because he failed the PMA's mandatory drug test. By 2002, Mr. Lopez was clean and sober. In 2004 he again applied to be a longshoreman but was rejected due to the PMA's one strike rule. Mr. Lopez sued under the California Fair Employment & Housing Act (FEHA) and the Americans with Disabilities Act (ADA), claiming he was a rehabilitated drug addict and that the one strike rule's lifetime ban was a per se violation of these Acts. He asserted that the one strike rule invariably excluded protected individuals based on their past behavior and constituted disability discrimination.

Mr. Lopez was a protected individual - clean and sober - but with a history of drug addiction. Indeed, under the one strike rule, nothing he could do would ever make him eligible for the job he wanted to hold. Ergo, it seems like FEHA and the ADA should provide him with some protection. However, the Ninth Circuit reached and stretched to find otherwise, relying on the fact that the PMA's rules and actions were not intended to exclude past drug addicts, but rather to ensure a safe workforce. The Court noted that PMA faces a "culture that accepted the use of drugs and alcohol in the workplace." The Court further noted that there was no evidence "that defendant targeted or attempted to target recovered drug addicts, as distinct from recreational uses."

The Court attempted to distinguish a 2004 Ninth Circuit case finding for the employee by noting that, in that case, perhaps the employer was motivated by discrimination against the employee, due to his past addiction, because the employee brought in a note from Alcoholics Anonymous. Hernandez v. Hughes Missile Systems Co. (9th Cir. 2004) 362 F.3d 564. The Court might have well just said it was changing its mind, and that, it was simply deciding that discriminating against someone with a history of drug abuse was acceptable.

In addition, the Ninth Circuit also rejected Mr. Lopez's disparate impact claim in a completely disingenuous and nit-picky manner. It unfairly characterized Lopez's expert evidence, statistical analysis and forensic affidavit as "bald assertions." Again, let's be real here. This particular Ninth Circuit panel simply decided that those with a history of drug abuse aren't entitled to the protection of the anti-discrimination laws, so it came up with intellectually dishonest reasons to do so. What really occurred here is that the Court applied a dose of tough love to Mr. Lopez, demonstrating that an employee with a history of drug or alcohol abuse faces an uphill battle in the struggle for workplace inclusion.

Jody LeWitter
March 21, 2011