Richards v. CH2M Hill, Inc.

• Decision Date: 23 August 2001
• Docket Number: No. S087484.,S087484.
• Citation: 111 Cal.Rptr.2d 87,26 Cal.4th 798,29 P.3d 175
• Court: California Supreme Court
• Parties: Lachi Delisa RICHARDS, Plaintiff and Respondent, v. CH2M HILL, INC., Defendant and Appellant.

111 Cal.Rptr.2d 87

26 Cal.4th 798

29 P.3d 175

Lachi Delisa RICHARDS, Plaintiff and Respondent, v. CH2M HILL, INC., Defendant and Appellant.

No. S087484.

Supreme Court of California.

August 23, 2001.

Seyfarth, Shaw, Fairweather & Geraldson, Seyfarth Shaw, Mark H. Van Brussel, Mark P. Grajski, Sacramento; Sherman & Howard and Theodore A. Olsen, Denver, CO, for Defendant and Appellant.

Paul, Hastings, Janofsky & Walker, Katherine C. Huibonhoa and Paul W. Cane, Jr., San Francisco, for California Employment Law Council as Amicus Curiae, on behalf of Defendant and Appellant.

Gibson, Dunn & Crutcher, David A. Cathcart, Timothy S. Lykowski, Los Angeles, and Annette M. Gammon, for The Employers Group as Amicus Curiae, on behalf of Defendant and Appellant.

Christopher H. Whelan, Gold River; Joseph Posner; Law Offices of Ellen Lake and Ellen Lake, Oakland, for Plaintiff and Respondent.

WERDEGAR, J.

Plaintiff, a disabled employee, resigned from her job after a five-year period during which she claimed her employer was unwilling to effectively accommodate her disability. She sued her employer for disability discrimination and harassment and the jury found in her favor, awarding substantial sums as damages to compensate for severe emotional distress and lost salary. Many of the incidents of disability discrimination introduced at trial occurred outside the one-year limitation period for filing Fair Employment and Housing Act actions. (Gov.Code, § 12960.)¹

This case raises the following question of interpretation of the Fair Employment and Housing Act (the FEHA; § 12900 et seq.): May an employer be held liable for unlawful actions occurring outside the limitations period? In addressing this question, we must determine the scope of the "continuing violation doctrine." That doctrine, described at greater length below, allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period. We conclude, consistent with the language and purposes of the FEHA, as well as federal and California case law, that an employer's series of unlawful actions in a case of failure to reasonably accommodate an employee's disability, or disability harassment should be viewed as a single, actionable course of conduct if (1) the actions are sufficiently similar in kind; (2) they occur with sufficient frequency; and (3) they have not acquired a degree of "permanence" so that employees are on notice that further efforts at informal conciliation with the employer to obtain accommodation or end harassment would be futile. We will accordingly reverse the judgment of the Court of Appeal and direct it to remand the cause to the trial court for application of this three-pronged test.

I. STATEMENT OF FACTS²

Plaintiff Lachi Delisa Richards was hired by CH2M Hill, Inc., a nationwide engineering firm, as a civil engineer and began work in 1984 in the water resources division at its Redding office. By all accounts, Richards was an outstanding engineer, who consistently generated favorable performance evaluations and continued, even during the period of her illness discussed below, to be a dedicated employee.

In late 1987 Richards began experiencing tremors and difficulty walking. Although she could still walk, she began using a wheelchair in April 1988 as a means of conserving energy. In October 1988, Richards was diagnosed with multiple sclerosis (MS).³ Richards's supervisors initially agreed to her request that she be given a part-time schedule, that she not be required to Perform any fieldwork, and that she be permitted to work out of the Sacramento office. Dr. Swank, Richards's treating physician and an international expert on MS, testified that MS is a fluctuating disease in which a patient's symptoms may come and go, depending in large part on the level of stress and exertion that the patient sustains.

Richards's symptoms continued to worsen. On her doctor's advice, Richards took an indefinite leave of absence, which ultimately lasted 10 months, beginning in March 1989.

On January 2, 1990, Richards returned to work in the Sacramento office. As her condition improved, she eventually worked an average of 20 to 25 hours per week. She performed some of her work at the office and some of her work at home—a routine that continued until February 1993, when she tendered her resignation.

Both before and after Richards was diagnosed with MS, a number of issues arose regarding CH2M Hill's accommodation of her disability. We summarize these issues below.

A Richards's Transfer

When Richards began her 10-month leave of absence in March 1989, she requested a formal transfer from the Redding office to the Sacramento office, both because it offered her closer proximity to her doctors, and because the Redding office was not wheelchair-accessible. Although the transfer approval process normally takes 60 to 75 days, approval of Richards's transfer took 11 months. It was not approved by the regional district manager, Robert Harding, until February 1990—one month after Richards's return from her leave of absence. Nonetheless, Richards reported to work at the Sacramento office when she returned from her leave on January 2, 1990—and in fact, had been working there prior to her leave of absence.

The evidence suggested the approval of Richards's transfer was delayed primarily because Harding believed Richards had lied on her employment application about her medical condition, despite the lack of evidence of such misrepresentation. He was not inclined to accommodate an employee whose candor he questioned, a viewpoint he unhesitatingly expressed to some of the supervisors in the Redding and Sacramento offices. In 1990, Mike Kashiwagi, the civil engineering department manager, told Richards that despite her good work, Harding and those in the corporate office wanted her to resign.

B. Computer Issues

During her 10-month leave of absence, Richards undertook to teach herself a new computer software program. To assist Richards in this endeavor, Grant Davids, Richards's Sacramento office supervisor, would bring a company computer to her home on weekends. In August 1989, Richards asked Davids if the company would lend her a computer to keep at home following her return to work. Davids informed her that CH2M Hill was not likely to lend her a computer and encouraged her to buy her own. He did, however, give his approval to Richards to work at home part-time following her return from her leave of absence. Richards proceeded to contact the California Department of Rehabilitation and several private organizations, seeking funding to purchase a computer. When two private organizations distributed flyers asking for contributions in Richards's name and identifying CH2M Hill as her employer, Richards's other supervisors told her that the solicitations had embarrassed the company. Richards was requested to ask the private organizations to withdraw the solicitations.

In November 1989, at the urging of one of CH2M Hill's managers, Richards met with Stan Smith, the Redding regional manager, to seek authorization to perform computer work at her home and to ask that CH2M Hill provide her with a computer. Smith told Richards that while the company was not asking her to resign, it was having difficulty comprehending how it could accommodate her disability. By the end of the meeting, Smith told Richards that the Sacramento office would have to make the decision on the computer. In fact, Richards never received an answer. As a result, in December 1989— while still on leave—Richards informed CH2M Hill it no longer needed to provide her with a computer because she had secured funding assistance from the Department of Rehabilitation. Richards then purchased her own computer.

During the August to December 1989 period in which plaintiff was seeking a computer, plaintiff sought legal advice from a lawyer and a private organization that advocates for the disabled, Resources for Independent Living, in an effort to determine whether her computer request was "reasonable," as well as to determine her rights in general to "reasonable accommodation" under the law. They advised her that her request was reasonable and provided additional information regarding the reasonable accommodation of her disability.

C. The Cot

In November 1988, while she was already working out of the Sacramento office, Richards, acting on her doctor's advice, asked Carol Uhouse, the regional administrative manager responsible for facilities in the Sacramento office, to purchase a bed so that she could rest during her breaks and at lunchtime.

Instead of purchasing a bed, the company purchased a folding army cot. Uhouse insisted that Richards help pay for items such as a mattress and sheets, while the company paid for blankets and a pillow.

Uhouse vetoed Richards's request that the cot be placed in any of several vacant offices, believing that the cot would be visible to, and look unprofessional to, clients and other visitors. Uhouse suggested that the cot be placed in an unheated and uncooled storage area known as the "black hole." Richards vetoed that suggestion.

Following Richards's return from her leave of absence in January 1990, the cot was set up in a drafting room next to Richards's office. However, Uhouse would periodically move the cot without notice when the space was needed for other purposes. This scenario continued until the spring or summer of 1990, when Richards's department manager, Loren Bottorff, moved the cot to a vacant office next to a new office into which Richards had recently moved. Richards considered the new location unsatisfactory, primarily because the room had a pole in the middle that prevented her from closing the door if her wheelchair was in the room, although Bottorff testified Richards had made no complaint to him about the cot's new location. In any case, from that point forward,...