California Court of Appeals, Fourth District, Third Division
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.
Offices of Robert S. Scuderi and Robert S. Scuderi for
Plaintiff and Respondent.
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
sued the district under the California Fair Employment and
Housing Act (the FEHA) (Gov. Code,  § 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.
Evidence Admitted at Trial
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
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
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.
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.
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.
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.
The Trial Court's Decision
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 ...