Shirvanyan v. L. A. Cmty. Coll. Dist.

• Decision Date: 30 November 2020
• Docket Number: B296593, B297419
• Citation: 59 Cal.App.5th 82,273 Cal.Rptr.3d 312
• Court: California Court of Appeals Court of Appeals
• Parties: Anahit SHIRVANYAN, Plaintiff and Respondent, v. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant and Appellant.

59 Cal.App.5th 82

273 Cal.Rptr.3d 312

Anahit SHIRVANYAN, Plaintiff and Respondent,

v.LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant and Appellant.

B296593, B297419

Court of Appeal, Second District, Division 1, California.

Filed November 30, 2020

Carlson & Messer, Charles R. Messer, Los Angeles; Greines, Martin, Stein & Richland and Robert A. Olson, Los Angeles, for Defendant and Appellant.

Shegerian & Associates, Carney R. Shegerian, Santa Monica, and Jill McDonell for Plaintiff and Respondent.

ROTHSCHILD, P. J.

Defendant Los Angeles Community College District (the District) appeals from a judgment following a jury verdict in favor of plaintiff Anahit Shirvanyan, a former employee of the District, on her Fair Employment and Housing Act (FEHA) claims against it. These claims were based on the District's alleged failure to provide reasonable accommodations for and/or engage in an interactive process to identify reasonable accommodations for two injuries, each of which was sufficient to render Shirvanyan disabled for the purposes of FEHA. Shirvanyan offered evidence regarding the District's response to both injuries—a wrist condition that began sometime in 2014, and a shoulder injury that occurred in December 2015—but she did not, either in her complaint or the evidence she presented, differentiate between them as bases for liability.

The District argues that a necessary element of a FEHA interactive process claim under Government Code ¹ section 12940, subdivision (n) is the availability of a reasonable accommodation at the time an interactive process should have taken place, such that engaging in the process would not have been futile. We agree with the District that a section 12940, subdivision (n) plaintiff must prove an available reasonable accommodation.

We further conclude that the evidence presented is sufficient to establish only that a reasonable accommodation of Shirvanyan's wrist injury, not her shoulder injury, was available. The jury did not indicate whether it relied on the District's response to one or both of these disabilities in reaching its verdict, and the record does not permit us to make such a determination. We therefore reverse with instructions that the trial court conduct a new trial on Shirvanyan's failure to accommodate and interactive process claims based solely on the District's handling of Shirvanyan's wrist injury. We further conclude, in response to the District's second primary argument on appeal, that the Workers’ Compensation Act ( Lab. Code, § 3200 et seq. ) (the WCA) does not bar such claims, as they seek recovery for a harm that is distinct from the harms for which the Workers’ Compensation Act provides a remedy.

The District also appeals from the order granting Shirvanyan attorney fees, which we also reverse. To the extent Shirvanyan prevails on the limited retrial set forth below, the court must reassess whether and to what extent she is entitled to attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

A. FEHA Concepts of Reasonable Accommodation and the Interactive Process

To assist in understanding the factual and procedural background of this matter, we provide an initial overview of some of the FEHA concepts involved in the litigation below. FEHA identifies several "unlawful employment practice[s]." ( § 12940.) Through these definitions, FEHA seeks to assure "those employees with a disability who can perform the essential duties of the employment position with reasonable accommodation" have the opportunity to do so and are not discriminated against based on their disability. ( Green v. State of California (2007) 42 Cal.4th 254, 264, 64 Cal.Rptr.3d 390, 165 P.3d 118 ( Green ).) A "reasonable accommodation" is " ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ " ( Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745, 151 Cal.Rptr.3d 292 (italics omitted), quoting Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974, 83 Cal.Rptr.3d 190 (Nadaf–Rahrov ).) A reasonable accommodation may include "[j]ob restructuring, part-time or modified work schedules, [or] reassignment to a vacant position." (§ 12926, subd. (p)(2).) "A finite leave of absence [also] may be a reasonable accommodation to allow an employee time to recover." ( Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 377–378, 184 Cal.Rptr.3d 9 ( Nealy ).)

FEHA imposes an "affirmative duty" ( Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598, 210 Cal.Rptr.3d 59, quoting Cal. Code Regs., tit. 2, § 11068, subd. (a) ) on employers "to make [a] reasonable accommodation for the known disability of an employee unless doing so would produce undue hardship to the employer's operation." ( Nealy, supra, 234 Cal.App.4th at p. 373, 184 Cal.Rptr.3d 9, citing § 12940, subd. (m).) Because the normal course of an employee's job may not make her aware of all available and effective reasonable accommodations, FEHA also requires that "in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition," an employer "engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any." ( § 12940, subd. (n).) An employer's failure to make a reasonable accommodation for an employee with a known disability—regardless of whether an employer has engaged in the interactive process or not (see Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984, 83 Cal.Rptr.3d 190 )—is unlawful ( § 12940, subd. (m)(1) ), and the disabled employee may sue to recover harm suffered as a result. An employer's failure to engage in the interactive process that causes harm to a disabled employee or former employee is also independently actionable. ( Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 971, 181 Cal.Rptr.3d 553.) For the purposes of a FEHA claim, the cause of an employee's disability is irrelevant; the focus is on the employer's efforts to reasonably accommodate the disability, regardless of its cause.

We discuss these concepts in greater detail in our analysis below.

B. Factual Background²

1. Shirvanyan's employment at the child development center

The Child Development Center (the center) at Los Angeles Valley College, a part of the District, employed Shirvanyan for approximately eight years, beginning in 2007. The District has three classifications for its employees—classified, unclassified, and academic. At the center, unclassified assistants may be assigned to roles in the kitchen, yard, or classroom. Shirvanyan was a level three unclassified assistant employee assigned to the kitchen. Her personnel record lists her job title as "Kitchen Coordinator," and in her complaint identifies her position as "kitchen worker." When employed at the center, Shirvanyan was the only unclassified assistant assigned exclusively to the kitchen.

While working at the center, Shirvanyan prepared breakfast and lunch (e.g., washed and cut fruit, opened large heavy cans, poured cereal), brought meals in large bowls and milk/juice to classrooms using a large cart, retrieved and cleaned dishes, washed five-pound pots, did laundry, and cleaned the kitchen. Shirvanyan's "essential job functions" included "repetitive use of her hands to cut foods, load[ing] and unload[ing] the dishwasher, and hand wash[ing] large and heavy pots and pans" and required "prolonged standing, repetitive bending, repetitive lifting, repetitive pulling, repetitive pushing, repetitive use of her hands" and the ability "to lift up to about 50 pounds."

2. Shirvanyan's carpal tunnel syndrome and resulting difficulties at work

In 2014, Shirvanyan was diagnosed with nerve damage and carpal tunnel in her arm and wrist. She began wearing a brace daily and needed help in the kitchen because of her injuries. Also in 2014, Shirvanyan reduced her hours due to pain. In May 2015, Shirvanyan consulted her primary care physician, Dr. Armine Nazaryan, about the pain in her wrist. Dr. Nazaryan diagnosed her with "moderate to severe right carpal tunnel syndrome" of the "right upper extremity" with "pain, numbness and weakness in her right hand." It is undisputed that carpal tunnel syndrome is a recognized disability under FEHA. Dr. Nazaryan prescribed wrist support and physical therapy.

Shirvanyan told her supervisors about her carpal tunnel syndrome and wrist pain. She frequently asked coworkers for help with more strenuous tasks, such as lifting heavy pots or moving large bags of fruit. Her coworkers were sometimes able to assist her. Shirvanyan also began participating in physical therapy, which somewhat improved her condition. Nevertheless, Shirvanyan was often in tears by the end of her shift due to the pain, complained of pain daily to her coworkers, and winced or favored one arm while completing her job duties.

Although not identifying them as such, Shirvanyan requested various accommodations for her wrist conditions at various times. She repeatedly asked her supervisors for additional help in the kitchen, which she did not receive. She requested an electric can opener, but she was denied that request. When the large industrial dishwasher broke, she asked for assistance hand washing dishes, or to be allowed to use paper plates, and was again denied. Shirvanyan also asked her supervisor whether she could help teachers supervise children instead of working in the kitchen, and was informed that she did not have the required skills for such work.

Testimony of the District's employees at trial reflected their lack of understanding of both the District's policies regarding reasonable accommodation and the obligations FEHA imposes on an employer, once the employer becomes aware of an employee's disability. Although Shirvanyan's supervisors were aware of Shirvanyan's carpal tunnel syndrome and her difficulties performing...