Plaintiff in Disability Discrimination Case Must Show She Could Work

Published FEHA cases from the California appellate courts have been slow in coming, so let’s look at a recent unpublished case from Second Appellate District Court of Appeal.

In this case, plaintiff sued her employer alleging disability discrimination in violation of FEHA and related claims including wrongful termination.

Plaintiff was employed by Sony Pictures as an accounting clerk. Plaintiff’s job duties were computer-related, about 90% of her day. Plaintiff left work and took FMLA leave after suffering pain in her elbow and arm. After a few months off, plaintiff’s physician released her to work with restrictions. A little bit later, but before returning to work, plaintiff saw another physician who took plaintiff off work again, and said she could return to work on April 22 “part time 5 hrs/day” at plaintiff’s regular job as long as plaintiff was provided with an “ergonomically sound work station.”

While plaintiff was off, she communicated with HR and looked at other positions. And on May 15, HR notified plaintiff that her doctor had released her to work for no more than 5 hours per day. She asked plaintiff to confer with her physician about more detailed work restrictions, then invited plaintiff to discuss this with HR when she got the detailed restrictions from her doctor.

Plaintiff’s new restrictions were no more than 5 hours per day, and limiting computer activities to no more than 45 minutes per hour and no lifting over 5 pounds. Employer decided to fill plaintiff’s position with another worker, but offered to extend plaintiff’s leave to June 25 to enable plaintiff to look for another position. (Sony’s leave policy provided up to six months.)

HR did look for positions for plaintiff, but could not find any that would work with plaintiff’s restrictions. Sony fired plaintiff on June 26.

Plaintiff sued Sony and Sony filed its motion for summary judgment which the trial court granted and here we are.

Sony’s Motion for Summary Judgment

Sony argued that plaintiff could not perform her job duties and no alternative positions were available to accommodate her work restrictions. Plaintiff was unable to produce any evidence that before Sony fired her, she provided Sony with any doctor’s note that her restrictions had changed. So Sony provided a legitimate business reason for firing plaintiff.

Plaintiff then had to show either pretext for her termination, or a triable issue of material fact that she could perform her job with a reasonable accommodation. The Court concluded plaintiff produced no evidence of this. Sony wins on this issue.

Plaintiff argued that Sony couldn’t have reasonably believed that an essential function of her job was to type for eight hours per day. The Court found no evidence for this, either, in light of her physician’s restrictions.

On the related claims of failure to engage in the interactive process and retaliation, the Court found no fact issue here, either.

So plaintiff failed on her appeal.

Moral of the Story

Based on the evidence in the Court’s opinion, I agree with the trial court and the appeals court. The problem plaintiff had was that she left work voluntarily because of pain in her right arm and elbow. Then, her doctors gave her very harsh work restrictions. Not knowing the real nature of her injury, it’s impossible to know whether or not plaintiff asked her doctors for very restrictive limitations, more than may be necessary.

I also couldn’t tell from the record whether or not plaintiff filed a workers’ compensation claim. What often happens in cases where a plaintiff has a workers’ compensation claim, the physician will often put onerous work restrictions at the employee’s request because often these restrictions are based on pain. If the employee claims a certain activity causes pain, the physician will provide restrictions to keep the employee from performing activities that cause pain, even if these activities don’t worsen the employee’s physical condition.

I suspect that was going on here since after she was notified that Sony fired her, plaintiff later came back with a doctor’s note removing the five hour per day limitation on work.

Unfortunately for plaintiff, it was a little too late. She exhausted her leave and Sony even gave her more leave. Even still, plaintiff waited too long.

The moral of this story is that if you are an injured employee, encouraging your doctor to give very restrictive work restrictions is a sharp sword that swings both ways. So if all you want is some time off or easier days at work, think twice, because you may lose your job. If you were injured and are involved in a personal injury lawsuit as a result, trying to exaggerate your injuries in order to gain more in a lawsuit is a bad idea, because it might cost you your job. Same applies for a workers’ compensation claim.

The best job is a job. Disability and workers’ comp settlements and personal injury settlements are never better than a good job.

So be careful….

Blow v. Sony Pictures Entertainment, Inc.
2015 Cal. App. Unpub. LEXIS 5526

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