Hernandez v. Rancho Santiago Community College Dist.

Facts

The statutory framework. The California Fair Employment and Housing Act (FEHA) protects “[a] person’s right to hold employment without discrimination based on a physical disability.” (Gov. Code, § 12900 et seq.; Hernandez, supra, 22 Cal.App.5th at p. 1193.) The operative provision makes it unlawful “[f]or an employer … to fail to make reasonable accommodation for the known physical or mental disability of an … employee,” subject only to a demonstrated “undue hardship.” (§ 12940, subd. (m)(1); Hernandez, supra, at p. 1193.) A failure-to-accommodate claim has “three elements”: “(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Hernandez, supra, at pp. 1193–1194.) The companion subdivision makes it unlawful to “fail to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations.” (§ 12940, subd. (n); Hernandez, supra, at p. 1196.) A second statute supplies the backdrop: Education Code section 88013, subdivision (a), provides that a community-college classified employee becomes permanent “after serving a prescribed period of probation which shall not exceed one year.” (Hernandez, supra, at p. 1194, fn. 3.)

A returning employee on probation. Marisa Hernandez had worked for the Rancho Santiago Community College District “on and off for a number of years without any complaints about her performance.” (Hernandez, supra, 22 Cal.App.5th at p. 1189.) Her 2013 hiring as an administrative assistant “was the third time she worked for the district.” (Id. at p. 1190.) She was to serve a one-year probation, with performance reviews due at three, seven, and 11 months; at 12 months she “would be considered a permanent employee.” (Id. at p. 1189.) Tellingly, “[h]er job performance was not evaluated after three months or after seven months,” and although she twice called to ask how she was doing — once saying she was “freaked out” because no one had reviewed her — “[n]o one ever told Hernandez there was any issue with her performance.” (Id. at p. 1190.)

The industrial injury and the surgery. During an earlier stint, Hernandez was injured at work on September 4, 2012, when her ankle “became entangled in cords underneath her desk” and she fell. (Hernandez, supra, 22 Cal.App.5th at p. 1190.) All injuries healed except one finger, whose knuckle “had been ‘completely destroyed,’ causing her ‘considerable pain.’” (Ibid.) On October 17, 2013, she discussed the recommended surgery with the district’s risk manager, Donald Maus. When she said she was “on probation and concerned about her job,” Maus told her “not to worry, ‘because you cannot be fired on a workers’ comp case.’” (Id. at pp. 1190–1191.) She testified that had he told her the surgery would affect her probation, “she would have put off the surgery, because the job was important to her.” (Id. at p. 1191.) Her doctor estimated three to four months off; the district agreed to the leave; and she underwent surgery “slightly more than eight months after she started working as a permanent administrative assistant.” (Ibid.)

Termination during the leave — and the rebuff. In late February 2014, Hernandez received a letter from the district’s human-resources office “terminating her employment,” with “no prior notice her job was in jeopardy.” (Hernandez, supra, 22 Cal.App.5th at p. 1191.) When she telephoned, the HR official, Judyanne Chitlik, told her “[i]n an angry voice”: “‘You should [have] known better than to take a personal leave while you’re on probation.’” (Ibid.) Hernandez protested that she was on “an approved workers’ compensation leave, not a personal leave,” but Chitlik insisted it was personal and that Hernandez “was terminated from probation.” (Ibid.) Had Chitlik told her she could reapply, “she would have,” but Hernandez understood her employment to be over. (Ibid.)

Procedural history

Hernandez sued the district under FEHA, alleging it “failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process.” (Hernandez, supra, 22 Cal.App.5th at pp. 1189–1190.) After a court trial, the trial court (Hon. Kim Garlin Dunning) “found in Hernandez’s favor and awarded her $723,746 in damages.” (Id. at p. 1190.) In an 11-page statement of decision, the court found that the district “‘had the option to deduct the time she was not able to work from her one-year probationary period or extend the probationary period,’” that “either would have been a reasonable accommodation,” and that extending probation “would not have been an undue hardship.” (Id. at pp. 1191–1192.) It further found the district “failed to accommodate Hernandez’s temporary total disability and failed to engage in any interactive process with her and instead, summarily terminated her employment.” (Id. at p. 1192.)

The district appealed, contending “it had to terminate Hernandez’s probation and employment because if it did not, she would have become a permanent employee without having had her performance evaluated.” (Hernandez, supra, 22 Cal.App.5th at p. 1190.) The Court of Appeal first addressed a procedural objection — the notice of appeal named the statement of decision rather than the later-entered judgment — and exercised its discretion to “treat the notice of appeal as effective” and the appeal as timely. (Id. at pp. 1192–1193.) Only two issues were argued: violation of section 12940, subdivision (m), and violation of subdivision (n). (Id. at p. 1193.) The opinion, certified for publication, affirmed the judgment in full. (Id. at p. 1197.)

Issue

The appeal presented “only … two issues”: “(1) whether the district failed to provide a reasonable accommodation to Hernandez in violation of section 12940, subdivision (m) … and (2) whether the district failed to engage in an interactive process with Hernandez in violation of section 12940, subdivision (n).” (Hernandez, supra, 22 Cal.App.5th at p. 1193.) On the merits, the district conceded that Hernandez “had a disability protected by the FEHA” and was “a qualified individual”; “[t]he disputed issue is whether the district failed to reasonably accommodate Hernandez’s disability.” (Id. at p. 1194.) The precise question, then, was whether merely granting a finite medical leave discharges the accommodation duty when the leave culminates in the employee’s termination because her probation lapsed while she was away.

Holding

Reasoning

Substantial-evidence review of a judgment after trial. Because the case came up from a court trial, the panel reviewed under the deferential substantial-evidence standard, presuming “the trial court made all factual findings necessary to support the judgment so long as substantial evidence supports those findings,” and viewing the evidence “in the light most favorable to the prevailing party.” (Hernandez, supra, 22 Cal.App.5th at pp. 1193–1194.) But the dispositive questions — “statutory interpretation, and the applicability of a statutory standard to undisputed facts” — were “questions of law, which we review de novo.” (Id. at p. 1194.) The court emphasized the facts were “essentially undisputed.” (Id. at p. 1190.)

The accommodation duty under section 12940, subdivision (m). The court set the statutory baseline: subdivision (m)(1) makes it unlawful to “fail to make reasonable accommodation for the known physical or mental disability of an … employee,” excused only by demonstrated undue hardship. (Hernandez, supra, 22 Cal.App.5th at p. 1193.) The provision’s purpose, the court stressed, “is to permit an individual with a disability to remain gainfully employed.” (Id. at p. 1195.) With the disability and qualified-individual elements conceded, the case turned entirely on the reasonableness of what the district did. (Id. at p. 1194.)

The finite-leave doctrine — and its limit. This is the heart of the opinion. The court accepted the settled rule, drawn from Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, that “‘a finite leave can be a reasonable accommodation under FEHA, provided it is likely … the employee would be able to perform … her duties’” when the leave ends. (Hernandez, supra, 22 Cal.App.5th at p. 1194.) But it drew the boundary that gives the case its name: “a finite leave is not a reasonable accommodation when the leave leads directly to termination of employment because the employee’s performance could not be evaluated while she was on the leave.” (Ibid.) Here the “accommodation” the district touted was poisoned by its own consequence — the leave was the very thing the district said forced the firing. A grant of leave “that leads directly to termination of employment is not an effective accommodation and is not reasonable under the FEHA.” (Ibid.)

The Education Code did not compel termination. The district’s entire defense rested on the premise that Education Code section 88013, subdivision (a), forced its hand: either fire Hernandez or make her permanent on the anniversary of her hiring without a performance evaluation. The court rejected the false dilemma. The statute “states a probationary period shall not exceed one year” and “provides the employer with a year in which to evaluate the employee’s performance,” but “does not state whether there are periods of time that may be deducted from the year, such as when an employee has been injured on the job and unable to work.” (Hernandez, supra, 22 Cal.App.5th at pp. 1194–1195.) Reading the silence in light of FEHA, the court held the absence may be deducted — giving “the employer … the full 12-month period of time in which to evaluate the employee’s performance,” while ensuring “the employee does not lose her job because she suffered a job injury resulting in her temporary total disability.” (Id. at pp. 1195–1196.)

Reasoning from Bell and the purpose of probation. Both sides relied on Bell v. City of Torrance (1990) 226 Cal.App.3d 189, where the appellate court approved extending a probationary period to account for a 78-day medical leave, reasoning that “‘an interruption of service caused by a leave of absence longer than 10 days requires an extension of the probationary period.’” (Hernandez, supra, 22 Cal.App.5th at pp. 1195–1196.) The court invoked the protective purpose of probation, quoting Wiles v. State Personnel Board (1942) 19 Cal.2d 344 that probation gives the employer “a reasonable period of time to observe” performance. (Hernandez, supra, at p. 1196.) The district, the court memorably observed, “attempts to use … the one-year probationary period — a statute enacted to shield employees like Hernandez from serving an indefinite period of time under the ‘Sword of Damocles’ — as a sword against an employee” absent on medical leave. (Ibid.) Because the district “could have deducted” the leave, it “would not have incurred the purported undue hardship” it claimed. (Ibid.)

The good-faith interactive process under subdivision (n). The accommodation analysis, the court said, “is borne out by reference to subdivision (n).” (Hernandez, supra, 22 Cal.App.5th at p. 1194.) Subdivision (n) requires “a timely, good faith, interactive process … to determine effective reasonable accommodations.” (Id. at pp. 1196–1197.) On this record — “where there is evidence Hernandez was told she could not be fired for taking medical leave and she was thereafter fired when she took the leave” — the court “cannot conclude the interactive process was in good faith.” (Id. at p. 1197.) When Hernandez later tried to reach the HR official, “she was rebuffed.” (Ibid.) The court’s metaphor captured the violation: “instead of sitting down with the employee and working out an effective accommodation, the district slammed and locked the door.” (Ibid.)

No dissent. The decision was unanimous; Justices Bedsworth and Aronson concurred without separate writing. (Hernandez, supra, 22 Cal.App.5th at p. 1197.) The court did not reach disability discrimination, retaliation, or any other theory — only the two FEHA subdivisions argued on appeal. (Id. at p. 1193.)

Significance

Hernandez is a clarifying gloss on the finite-leave-as-accommodation line that runs from Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215 and Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245. Those cases established that a definite leave can be a reasonable accommodation when the employee is expected to return able to work; Hernandez supplies the corollary — and a warning. Leave is not a magic word. Where the leave is structured so that taking it costs the employee the job, the employer has not accommodated anything; it has manufactured the termination. The decision teaches that the touchstone is whether the accommodation is effective at keeping a qualified worker employed, not whether the employer can recite that it granted time off. (Hernandez, supra, 22 Cal.App.5th at pp. 1194, 1195.)

The case also matters for probationary and public employees. By reading Education Code section 88013’s one-year cap to permit tolling for industrial-injury leave, the court harmonized civil-service probation rules with FEHA’s accommodation mandate, holding that a generic probationary statute cannot be wielded “as a sword against an employee” disabled on the job. (Hernandez, supra, 22 Cal.App.5th at p. 1196.) The holding’s reach is bounded, however: the disability and qualified-individual elements were conceded, the facts were undisputed, and the court interpreted a community-college statute silent on deductions. Its core principle — leave that merely postpones an inevitable firing is no accommodation — is the durable, transferable rule, and it maps directly onto CACI No. 2541, the failure-to-accommodate instruction whose third element asks whether the employer failed to provide a reasonable accommodation.

Key quotes

“[A] finite leave is not a reasonable accommodation when the leave leads directly to termination of employment because the employee’s performance could not be evaluated while she was on the leave.” (Hernandez, supra, 22 Cal.App.5th at p. 1194.)

“An ‘accommodation’ that leads directly to termination of employment is not an effective accommodation and is not reasonable under the FEHA.” (Id. at p. 1194.)

“[T]he district attempts to use Education Code section 88013, subdivision (a)’s one-year probationary period — a statute enacted to shield employees like Hernandez from serving an indefinite period of time under the ‘Sword of Damocles’ — as a sword against an employee who was away from work on a medical leave for a work injury.” (Id. at p. 1196.)

“[I]nstead of sitting down with the employee and working out an effective accommodation, the district slammed and locked the door.” (Id. at p. 1197.)

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Practice pointer

Open questions

Whether tolling is mandatory or merely permitted. The court held the absence “may be deducted from the employee’s probationary period,” framing deduction as an available accommodation rather than a categorical rule. (Hernandez, supra, 22 Cal.App.5th at p. 1195.) It left open whether, and in what circumstances, an employer is required to toll — and how a different collective-bargaining agreement, or a statute that expressly addresses deductions, would change the analysis. (Id. at pp. 1195–1196.)

The reach beyond community-college probation. The deduction holding turned on Education Code section 88013’s silence and the particular collective-bargaining agreement, which “does not speak to deducting leaves of absence from ‘total service.’” (Hernandez, supra, 22 Cal.App.5th at p. 1196.) How far the same reasoning extends to private-sector probation, fixed-term contracts, or other public civil-service schemes was not decided.

The boundary of the finite-leave rule. The court reaffirmed that finite leave is reasonable only where the employee “would be able to perform … her duties” afterward, but did not address the harder case the abstract doctrine targets — leave sought by an employee who cannot show a likely return to the essential functions at all. (Hernandez, supra, 22 Cal.App.5th at p. 1194.) Here the employee was concededly qualified and expected to return; the court had no occasion to decide where indefinite or repeatedly extended leave ceases to be a reasonable accommodation.