Jenkins v. County of Riverside, E037030.

Citation41 Cal.Rptr.3d 686,138 Cal.App.4th 593
Decision Date23 March 2006
Docket NumberNo. E037030.,E037030.
CourtCalifornia Court of Appeals
PartiesEvelyn JENKINS, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, Defendant and Respondent.
OPINION

KING, J.

Plaintiff and appellant Evelyn Jenkins was employed as a temporary employee by defendant and respondent County of Riverside (County). She alleged that after becoming disabled she was denied accommodation and wrongfully terminated. The trial court granted the County's motion for summary judgment and gave judgment in favor of the County. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff was originally hired in 1992 as a temporary County employee in the position of Office Assistant II (OA II). She worked full time in the medical records department of the County hospital. Her initial task was to file old fetal monitor records which had piled up in the basement of the County medical building. Plaintiff was also trained in the general duties of the medical records department, and, once the backlog of fetal monitor files had been cleared away, her time was occupied with pulling medical charts and filing medical charts.

Pulling charts would consist of taking medical charts from shelves in a central storage area, or tracking down charts if they were not on the shelf. Plaintiff would pull hundreds of charts in a day. Some charts were heavy, about the weight of a heavy book. Some charts had multiple files, up to two inches in thickness. Plaintiff would sometimes carry more than one chart at a time. Filing charts required plaintiff to replace the charts in the central filing system. Plaintiff would file perhaps 30 to 40 charts per day.

In 1996, plaintiff injured her right wrist while lifting charts out of a box. She filed a workers' compensation claim for her injury. She had surgery to treat the carpal tunnel injury to her wrist. Plaintiff was off work after the surgery for a "[c]ouple months," and returned to light duty for six weeks to two months.

In January 1998, plaintiff's treating physician, Dr. Eric Sabety, released her to return to work without restrictions. On March 24, 1998, however, Dr. Sabety wrote a final evaluation report stating that, although she had made a full recovery from the carpal tunnel surgery, she still had residual pain, most likely attributable to problems in the cervical spine. Dr. Sabety rated plaintiff's condition as permanent and stationary for workers' compensation purposes, and opined that, "[o]n the open labor market, I would recommend a preclusion against heavy lifting with the right upper extremity, as well as repetitive gripping activities." The report also stated that plaintiff was "working with symptoms," and that she had been "placed in a more physically demanding area than she was prior to the injury. In other words, she is now doing a job that is more difficult than what she was doing when she was originally injured. All of these issues need to be looked at. Ultimately, she has to make a decision as to whether or not it is worth doing. She states that they are moving to the new hospital on the 31st. . . . However, for the present, I believe that she can continue to perform her usual and customary work."

Plaintiff alleged that, "[o]n or about May 26, 1998, at approximately 8:30 a.m., plaintiff presented to the County documentation from her physician that her disability required that her duties at work be restricted and requested reasonable accommodation for said disability," and that, "[a]t approximately 2:30 p.m. on the same day, May 26, 1998, the County terminated plaintiff's employment. . . ." Plaintiff alleged that the termination was solely because of her disability. The termination letter recited that plaintiff was terminated because temporary employees are limited to a maximum of 1,000 hours of work per year under the County's salary ordinance, and plaintiff had exceeded that number.

After plaintiff was terminated in May 1998, the County wrote a letter regarding her workers' compensation claim. Linda Troutmiller, the workers' compensation claims adjuster handling plaintiff's workers' compensation claim, notified plaintiff on July 13, 1998, that plaintiff was potentially eligible for vocational rehabilitation benefits, because the County had determined that plaintiff's medical condition would prevent return to her regular job duties. Plaintiff accepted the offer of vocational rehabilitation benefits. In 2001, plaintiff was trained in accounting and in voice recognition software (to obviate the necessity for using her right hand for repetitive use of a computer mouse or keyboarding). She has been employed as a bookkeeper or doing general accounting since January 2002.

In April 1999, plaintiff filed a claim with the Department of Fair Employment and Housing (DFEH), asserting disability discrimination and the failure to accommodate her disability, in violation of the Fair Employment and Housing Act (FEHA). (Gov.Code, § 12900 et seq.) On or about April 7, 1999, the DFEH issued plaintiff a right-to-sue letter.

On July 2, 1999, plaintiff filed a first amended complaint against the County in an action in the United States District Court, alleging violation of civil rights (42 U.S.C.A. § 1983), breach of contract (i.e., violation of a collective bargaining agreement), and violation of the FEHA, both because of disability discrimination and for refusal to provide reasonable accommodation for plaintiff's disability.1

The County moved for summary judgment on the claims of plaintiff's federal action. On June 28, 2000, the United States District Court granted the County's motion. Plaintiff appealed to the Ninth Circuit Court of Appeals. In January 2002, the Ninth Circuit reversed, holding that plaintiff had not been afforded a proper opportunity to oppose the motion, because an expedited docket procedure had precluded her from conducting discovery on the issue of whether she was qualified to be a regular County employee. In the meantime, by stipulation, plaintiff had dismissed her state law claims from the federal action.

In June 2001, plaintiff filed her initial complaint in state court in this action. After the County demurred to the initial complaint, plaintiff filed her first amended complaint, the operative pleading in this action, in July 2002. Plaintiff alleged causes of action for violation of the Meyers-Milias-Brown Act, for failing to compensate plaintiff as a regular permanent employee, for violation of the County's salary ordinance by treating and classifying her as a temporary employee when she in fact did the same work as a regular employee, for violation of the FEHA in terminating plaintiff because of her disability and in failing to offer her reasonable accommodation for her disability, and for failure to enroll plaintiff as a regular member of the Public Employees Retirement System (PERS).

The County demurred to plaintiff's first amended state court complaint. The first (breach of Meyers-Milias-Brown Act) and second (violation of salary ordinance) causes of action were dismissed by stipulation of the parties. The fourth (PERS enrollment) cause of action was dismissed at a status conference. On November 6, 2002, the County answered the first amended complaint on the remaining cause of action, for violation of the FEHA.

After filing its answer in the state court action, the County again moved for summary judgment in the federal action. Plaintiff also moved for summary judgment in the federal action. The federal district court again granted summary judgment for the County, and plaintiff appealed that ruling. The Ninth Circuit held, in a per curiam decision, that the only undetermined issue before it was whether plaintiff was "qualified" for a regular, permanent position, and concluded that she was. Accordingly, on December 22, 2004, the Ninth Circuit panel reversed the judgment in favor of the County, and remanded with directions to enter summary judgment in favor of plaintiff on the cause of action for violation of her due process rights.

Meanwhile, in the state court action, the County had also moved for summary judgment. The motion was filed on September 22, 2003. Plaintiff opposed the motion. After numerous continuances, the motion was heard on July 9, 2004. On August 23, 2004, the court issued its ruling on the motion for summary judgment. The court found that plaintiff was disabled, and that she was a qualified person under the FEHA, i.e., she was able, with or without accommodation, to perform the essential tasks of her job safely. (Gov. Code, § 12940, subd. (a)(1).) For purposes of plaintiff's accommodation claim, she was a qualified person, in that she was able to perform the essential duties of the position to which she sought reassignment. Plaintiff failed to defeat the motion for summary judgment, however, on the issue of causation. The trial court concluded that the terms of public employment are fixed by statute or ordinance, and not by contract. Thus, no implied contract to terminate only for good cause may be established by the passage of time. The County's salary ordinance prohibited employing a temporary employee for more than 1,040 hours per year without expressly extending that term. Plaintiff conceded that no request to extend her hours had ever been made, and that no such extension had ever been granted. The letter terminating plaintiff's employment stated that the departmental director "`cannot continue your employment with Riverside County Regional Medical Center.'" The court further held that, "Previous violations [of the salary ordinance] by other administrators do not establish an implied contract of permanent employment. Even if the County, or one of its administrators, had...

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