One element of a disability discrimination claim under FEHA that plaintiff attorneys sometimes tend to overlook is whether or not the plaintiff was performing competently in the position plaintiff held. Failure to show that the plaintiff was doing her job competently with or without reasonable accommodation is a case killer.
Just ask Cynthia Lawler, a former store manager for Montblanc. She was diagnosed with psoriatic arthritis and her physician recommended that Lawler reduce her work schedule to 20 hours per week. Soon thereafter, Lawler broke her foot at home. Lawler’s employer sought additional information from her physician who recommended that Lawler not work at all for over 4 months, which meant Lawler would miss the holiday season when more hours are required and during which 1/3 of year sales occur.
Montblanc fired Lawler after concluding that Lawler could not do her job since she could not work at the store.
Lawler sued alleging disability discrimination under FEHA, retaliation under FEHA, harassment under FEHA and intentional infliction of emotional distress.
Montblanc filed a motion for summary judgment which the court granted.
On appeal, the court upheld the summary judgment and concluded that Lawler presented no evidence that she could do her job, with or without accommodation.
One might remind the court that leave can be a reasonable accommodation (See Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 263 (2000)). Apparently, Lawler’s lawsuit did not claim that her employer failed to make a reasonable accommodation so Lawler could do her job or that employer failed to participate in an interactive process to determine if a reasonable accommodation was available.
The court noted that after Lawler was fired, she never sought other employment and had applied for Social Security disability benefits.
The lesson here for plaintiffs is to present solid evidence that plaintiff can do the job, with or without accommodation.
Lawler v. Montblanc North America, LLC, 2013 WL 135752, ____F.3d____ (2013).