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Hernandez v. Rancho Santiago Community College District

California Court of Appeals, Fourth District, Third Division

May 3, 2018

MARISA HERNANDEZ, Plaintiff and Respondent,

          Appeal from a judgment of the Superior Court of Orange County, No. 30-2015-00773691 Kim Garlin Dunning, Judge. Affirmed.

          Declues, Burkett & Thompson, Jeffrey P. Thompson and Steven J. Lowery for Defendant and Appellant.

          Law Offices of Robert S. Scuderi and Robert S. Scuderi for Plaintiff and Respondent.


          MOORE, JUDGE.

         Plaintiff Marisa Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance. In 2013, she was hired as an administrative assistant. During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months. At the completion of 12 months of probation, she would be considered a permanent employee. Eight months into her probationary period and with the district's consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the district prior to her most recent hiring. She was scheduled to return to work on, or shortly after, the anniversary of her hiring date. The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.

         Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) (Gov. Code, [1] § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process. At the conclusion of the court trial, the court found in Hernandez's favor and awarded her $723, 746 in damages. The trial court found the district could have accommodated her by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period, and, contrary to the district's position, the district would not have been required to make Hernandez a permanent employee on the anniversary of her hiring. The district appeals, 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. We affirm the judgment.



         A. Evidence Admitted at Trial

         Hernandez's 2013 hiring was the third time she worked for the district. During her second stint with the district, she was injured at work on September 4, 2012, when her right ankle became entangled in cords underneath her desk. Hernandez fell, hitting her shoulder, her right knee, and left hand against a filing cabinet.

         Hernandez was to be on probation for a year with the latest hiring. Reviews were due at three, seven, and 11 months. Her job performance was not evaluated after three months or after seven months. When she did not receive her review after three months, she called the vice-president of student affairs, who had stated she and Dean Bryant would take care of all human resources matters. No one ever got back to Hernandez about that review. She called again when it was time for her seven-month review. Hernandez said she was “freaked out” because she had not heard from anyone about her reviews and she wanted to know how she was doing in her job. No one ever told Hernandez there was any issue with her performance.

         The injuries Hernandez suffered in 2012 all healed, except for the injury to one of her fingers. That finger had been broken, but it had not been diagnosed at the time of the injury. A knuckle had been “completely destroyed, ” causing her “considerable pain.” Her doctor recommended surgery. On October 17, 2013, after she had already been working as a permanent administrative assistant for more than six months, Hernandez spoke with Donald Maus, the risk manager for the district, about her doctor's recommendation. She said Maus sounded angry and, because she started to feel intimidated by Maus, Hernandez asked him if she should not get the surgery. He did not advise against surgery. She asked if having the surgery was going to cost the district a lot of money, and he said the schools rates would go up. Hernandez told Maus she was on probation and concerned about her job. He told her not to worry, “because you cannot be fired on a workers' comp case.” Hernandez said 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.

         Hernandez's doctor estimated she would be out of work for three to four months. The district agreed to Hernandez taking time off for the surgery. Hernandez had surgery replacing her damaged knuckle with bone from a cadaver on November 18, 2014, slightly more than eight months after she started working as a permanent administrative assistant.

         In late February 2014, Hernandez received a letter from Judyanne Chitlik, who works in the district's human resources department, terminating her employment with the district. Hernandez thought the district had made a mistake and sent the letter to the wrong person. She had no prior notice her job was in jeopardy. Hernandez called the telephone number in the letter and spoke to Chitlik's secretary who seemed nervous after hearing Hernandez's name and, after putting her on hold for a long time, the secretary said Chitlik was not available to talk to Hernandez. Hernandez asked when Chitlik would be available and the secretary said it would not be that week. The secretary refused to make an appointment for Hernandez. Hernandez then gave the secretary her telephone number, requesting Chitlik to call her back.

         Chitlik returned Hernandez's telephone call a few hours later. In an angry voice, Chitlik told Hernandez, “You should [have] known better than to take a personal leave while you're on probation.” Hernandez said she was on an approved workers compensation leave, not a personal leave, but Chitlik said it was a personal leave and that Hernandez was terminated from probation. Had Chitlik told Hernandez she could reapply for the position, she would have. Hernandez's belief, however, was that she could not reapply because her employment had been terminated.

         B. The Trial Court's Decision

         In an 11-page statement of decision, the trial court found Hernandez was a probationary employee who had a temporary total disability, and consequently, 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 by the number of days [Hernandez] was off work.” The court found either would have been a reasonable accommodation and would have given her a 12-month probation. The trial court rejected the district's contention that it could not do either because it was required to make Hernandez a ...

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