Employment Law - May 2017

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In This Issue:
  • What Is a “Workplace”? California Appellate Court Considers
  • Employee Responsible for Breakdown in ADA Interactive Process Can’t Sue
  • Refusal to Rescind Resignation Doesn’t Violate FEHA

What Is a “Workplace”? California Appellate Court Considers

Why it matters

A California appellate panel considered the issue of the location of a “workplace” for purposes of employer liability when an employee got into a car accident. An employee at a construction company was expected to first drive to the company’s yard each day and then drive a company truck from the yard to the day’s jobsite, ferrying coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company. A trial court granted summary judgment in favor of the employer, holding that the worker was commuting to work and not acting within the scope of his employment. The appellate panel reversed, finding a material issue of fact as to the location of the employee’s “workplace.” If the yard was the employee’s workplace, then he was engaged in an ordinary commute and not acting within the scope of his employment, letting the employer off the hook. But if the jobsite was his workplace, then the motorcyclist could argue the employee was on a business errand to the yard for the employer’s benefit, the panel said, with the potential for the employer’s liability.

Detailed discussion

Beginning in October 2010, Modern Alloys Inc. employed Juan Campos as a cement and mason finisher. The employer expected Campos to arrive at its yard at about 8:00 p.m. before paying him for working a 9:00 p.m. to 5:00 a.m. shift at the jobsite. After arriving at the yard, Campos would drive one of the company’s two-ton dump trucks to the jobsite, carrying coworkers and construction materials, and then drive it back at the end of his shift.

One evening, while driving from his home to the yard in his own vehicle, Campos collided with Michael Sumrall, who was riding a motorcycle. Sumrall filed suit against Modern Alloys alleging respondeat superior liability for Campos’ negligence. A trial court judge granted summary judgment in favor of the employer, and Sumrall appealed.

Evaluating the undisputed facts, the appellate panel said it could draw two reasonable inferences: first, that Campos was on a normal commute, and second, that Campos was also on a business errand for Modern Alloys while commuting from his home to the yard. For that reason, the court reversed summary judgment and remanded the case to the trial court.

As the court recognized, in general, an employee is not acting within the scope of employment while traveling to and from the workplace. But, the court explained, if the employee—while commuting—is on an errand for the employer, then the employee’s conduct is within the scope of his or her employment from the time the errand begins, according to the “business errand exception” to the “going-and-coming rule” and would be a question of fact for the jury.

Therefore, the court concluded that the location of Campos’ workplace was “a material, triable issue” for a jury, with several questions to be resolved.

In reaching its conclusion, the court considered, “Was the ‘workplace’ the yard where Campos first arrived, or was it the jobsite where he applied his skills as a concrete worker and was paid for that work?” “Was it an incidental benefit for Modern Alloys to have Campos—a masonry worker—first arrive at the yard and drive material and coworkers in a two-ton truck to a jobsite without being paid? Is it common for a commuter to drive from his home to a location where he will not be paid for his work, rather than to drive directly to the jobsite where the employer will pay him for his work? Would Campos have driven directly from his home to the jobsite if not expected to do otherwise?”

If Modern Alloys had actually paid Campos from the time he arrived at its yard, then the court said it “arguably would not be reasonable to hold the company liable for any of Campos’ torts before he got there. That would not be a foreseeable cost of Modern Alloy’s construction business.”

But Campos performed some of his duties at no additional cost to Modern Alloys, with the employer accomplishing that savings by directing Campos to first drive from his home to its yard. “Therefore, Modern Alloys has arguably assumed the ‘allocation of a risk’ under the respondeat superior doctrine, and the business errand exception to the going and coming rule may reasonably apply,” the panel wrote.

As the court could not state as a matter of law that Campos was not on a business errand while commuting from his home to the employer’s yard, it reversed the grant of summary judgment in favor of the employer and remanded the case to the trial court.

To read the opinion in Sumrall v. Modern Alloys Inc., click here.

Employee Responsible for Breakdown in ADA Interactive Process Can’t Sue

Why it matters

An employee who repeatedly failed to return telephone calls and provide information needed to understand her job restrictions was responsible for the breakdown in the Americans with Disabilities Act (ADA) interactive process, the U.S. Court of Appeals for the First Circuit recently ruled. A social worker regularly required to write and document her work suffered a hand injury. She was placed on rest, underwent a series of follow-up exams, and returned to work while continuing treatment. The information she provided the employer did not indicate what specific accommodations were necessary to perform her daily tasks. When the employer sought additional details, the employee failed to respond to multiple phone calls and a letter. She filed suit instead, asserting failure to accommodate in violation of the ADA. The federal appellate panel affirmed summary judgment for the employer, holding that the employee was responsible for the breakdown in the interactive process.

Detailed discussion

As a social worker at Fresenius Health Partners, Gloria M. Ortiz-Martinez was required to regularly write and document various aspects of her work, including documentation of all interventions and services she rendered to patients and completion of a monthly report for each patient under her care.

During the course of her employment, Ortiz-Martinez suffered a hand injury while preparing written notes in her patients’ files. She was placed off of work for approximately one year as she underwent follow-up exams. She then sought to return to work as she continued treatment.

Ortiz-Martinez provided her supervisor with a form from her doctors indicating her diagnosis and that she was cleared to return to work while her treatment continued, but did not indicate what specific accommodations were necessary to assist her in the completion of her daily tasks. Her supervisor advised her that without additional information about the specific accommodations she was requesting, Fresenius would not be able to reinstate her.

The employee obtained a letter from her doctors that stated she needed to “be provided with an occupational adjustment” and suggested giving her short rest periods during her workday. Seeking more information, Fresenius then attempted to contact Ortiz-Martinez on multiple occasions by phone as well as by letter. Even after her union representative advised her the company was trying to reach her, Ortiz-Martinez did not contact Fresenius or attempt to further communicate her accommodation needs.

The parties managed to connect for a meeting in which Fresenius reiterated the need for additional information concerning Ortiz-Martinez’s medical restrictions, with questions such as the maximum weight she could lift, the frequency and duration of rest periods required, the kind of repetitive movements to be avoided, her capacity for using her hand at the level required to perform her essential duties as a social worker, and any other specific recommendations.

Ortiz-Martinez never responded, and instead filed suit alleging that Fresenius failed to accommodate her disability in violation of the Americans with Disabilities Act (ADA).

A district court granted summary judgment in favor of the employer, and the U.S. Court of Appeals for the First Circuit affirmed.

The interactive process, which varies depending on the circumstances of each case, “requires both the employer and employee to engage in a meaningful dialogue, in good faith, for the purpose of discussing alternative reasonable accommodations,” the panel wrote. Courts look for signs of failure to participate in good faith or the failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.

Rejecting Ortiz-Martinez’s argument that Fresenius’s request for additional information was excessive and unrelated to her work requirements as a social worker, the court found the plaintiff responsible for the breakdown of the interactive process.

“The burden is on Ortiz-Martinez to demonstrate in the first instance what specific accommodations she needed and how those accommodations were connected to her ability to work,” the court said. “Notwithstanding this burden, here the record is rife with uncontested facts demonstrating that Fresenius continually attempted to engage in the interactive process in good faith, while Ortiz-Martinez refused to meaningfully engage after submitting an initial letter from her doctors … and attending a meeting.”

Fresenius’s request for more information “was reasonable and important” to determine the type of accommodations the plaintiff required, the panel added. Questions such as how much weight Ortiz-Martinez could support with her hands and how long or frequently she needed breaks throughout the day “were directly relevant to the accommodations she would need and her duties of daily desk and personal computer work,” the panel said.

Simply expressing her desire to be reinstated was insufficient to demonstrate that she meaningfully engaged with the interactive process in good faith, the court explained. “A declaration of a desire to return did not assist Fresenius in probing the contours of her physical limitations in order to fashion an appropriate accommodation and Fresenius’s failure to offer her any type of accommodation due to a lack of sufficient information cannot be the basis of liability—Fresenius committed no error in attempting to clarify her needs so that it could properly accommodate her,” the court said. “We therefore conclude that Ortiz-Martinez’s failure ‘to make reasonable efforts to help [Fresenius] determine what specific accommodations are necessary’ caused the breakdown in the interactive process. Consequently, her failure to cooperate in Fresenius’s attempts to identify the proper accommodations precludes a finding that the company is liable for the failure to accommodate.”

To read the opinion in Ortiz-Martinez v. Fresenius Health Partners, click here.

Refusal to Rescind Resignation Doesn’t Violate FEHA

Why it matters

An employer did not retaliate in violation of the Fair Employment and Housing Act (FEHA) by refusing to permit a worker to rescind her resignation, a California appellate panel concluded, even where she alleged she made the move due to an “altered mental state” from an adverse drug reaction. While recovering from surgery, Ruth Featherstone called Southern California Permanente Medical Group (SCPMG) one morning to resign from her job, stating that “God told [her] to do something else.” After Featherstone continued to behave erratically, she was hospitalized and it was determined she was suffering an adverse reaction to her medication. When she recovered, she sought to rescind her resignation. SCPMG considered but refused. Featherstone filed suit alleging the refusal constituted disability discrimination (based on her temporary disability arising from the side effects of the drugs) in violation of FEHA. But the court disagreed, granting summary judgment in favor of the employer and holding that the refusal to permit the plaintiff to rescind her resignation was not an adverse employment action under the statute.

Detailed discussion

Ruth Featherstone began working at Southern California Permanente Medical Group (SCPMG) in 2009. As a result of a tumor in her sinus cavity, she suffered from chronic sinus conditions and had previously undergone five surgeries to treat the problem. In 2013, Featherstone’s doctor informed her she needed to have another surgery.

SCPMG granted Featherstone leave to have the surgery and for recovery. She returned to work without any work restrictions, but one week later she called her supervisor to resign effective immediately because “God told [her] to do something else.” The supervisor did have to tell Featherstone to “slow down” during the conversation but did not think her behavior was odd.

The supervisor e-mailed Featherstone to confirm her resignation in writing, which she did. The company immediately processed the paperwork so that she could receive her final paycheck and other discharge-related paperwork in a timely manner.

Featherstone was hospitalized the day after her resignation when her behavior progressively changed. In addition to her resignation, she took off her clothes and walked around naked in front of others, repeatedly and uncharacteristically swore at family and friends, and took showers for no reason. About a week after her release from the hospital, Featherstone contacted SCPMG to inform the company that at the time of her resignation she was suffering from an adverse drug reaction and requested to rescind her resignation.

After consideration, the employer denied the request. Featherstone then sued in California state court, alleging the denial constituted disability discrimination in violation of the Fair Employment and Housing Act (FEHA) as well as public policy. A trial court granted summary judgment in favor of SCPMG and an appellate panel affirmed.

“[R]efusing to allow a former employee to rescind a voluntary discharge—that is, a resignation free of employer coercion or misconduct—is not an adverse employment action,” the court wrote.

An adverse employment action is one that materially affects the terms, conditions or privileges of employment, the panel said—and Featherstone was no longer an employee when SCPMG refused to rescind her resignation. California case law focuses “on guarding against employer conduct that materially affects an employee’s job performance and/or opportunity for advancement,” and not on “the terms, conditions, or privileges of his or her unemployment.”

With the text of FEHA silent on the issue, the court looked to similar decisions interpreting the Americans with Disabilities Act (ADA) and Title VII, where federal district courts have “regularly” found that an employer’s refusal to allow an employee to rescind his or her resignation is not an adverse employment action.

“The reason why ‘[a]n employee who voluntarily resigns cannot show that he or she has suffered an adverse employment decision’ is self-evident: Refusing to accept rescission of a resignation is ‘not an adverse employment action for the simple reason that the employment relationship has ended,’” the panel wrote.

SCPMG did not coerce Featherstone’s resignation and was not contractually obligated to permit rescission of her resignation, the court added. “Because Featherstone’s rescission request was made after SCPMG accepted her resignation, SCPMG was under no contractual obligation to accede to her request,” the court said. “Accordingly, under the totality of the circumstances, SCPMG’s refusal was not an adverse employment action.”

As the plaintiff was unable to establish one of the required elements of her prima facie case for employment discrimination under FEHA, summary judgment in favor of the employer was appropriate, the panel ruled. Because FEHA was not violated, Featherstone’s claim for wrongful termination in violation of public policy necessarily failed as well.

The court was not persuaded that Featherstone’s claim for failure to accommodate under FEHA should survive, either. When she resigned, the employer did not have actual or constructive knowledge that she was suffering from a temporary disability caused by an adverse drug reaction, nor should her managers have suspected that she was suffering from an altered mental state, the court said, as the reference to God was not inconsistent with her character.

Although a coworker reached out to SCPMG about Featherstone’s condition when she was hospitalized (and was informed by human resources that it could not discuss the situation as she was not a family member), that “lone, incomplete communication” not only occurred after Featherstone had resigned, but was insufficient by itself to put the employer on notice of her condition, the court added.

“[T]he conclusion that SCPMG was on notice of Featherstone’s temporary disability at the time of her resignation is not the only reasonable interpretation of the known and undisputed facts,” the panel wrote. “Because there is more than one reasonable interpretation and because SCPMG first learned that Featherstone suffered from the alleged temporary disability only after she had tendered her resignation and that resignation had been accepted by SCPMG—that is, after Featherstone ceased being a SCPMG employee—the trial court properly granted judgment as a matter of law.”

To read the decision in Featherstone v. Southern California Permanente Medical Group, click here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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