In my practice advising employers, and sometimes employees, I find that determining, offering and providing reasonable accommodations to disabled employees can be challenging to the say the least. Often, there is the question of whether the employee has a covered disability, which can involve less than clear medical certifications. Then, there is the challenge of fleshing out exactly what employees want or need as an accommodation that will enable them to perform the essential functions of their job. The law and the courts expect that employees and their employers engage in an interactive dialogue at this stage. In reality, employees rely on their medical providers to recommend accommodations, employers are constrained in communicating with those providers due to health information privacy laws, and the parties are sometimes left with inadequate information upon which to make a reasonable accommodation determination. Granted, employers sometimes make quick decisions about what the accommodation ought to be. And that may have been what occurred in the following case.
The recent California Court of Appeal opinion in Swanson v. Morongo Unified School District, 2014 Cal.App. LEXIS 1183, held that the School failed to establish that it provided a reasonable accommodation to Swanson, an elementary school teacher on a probationary teaching contract who had breast cancer, and it failed to engage in the interactive process. The School had prevailed on a motion for summary judgment, meaning the case would be dismissed. However, the Court of Appeal reversed, finding that there were triable issues of fact on Swanson’s discrimination claims (which means that the case will go to a jury for a final determination).
Lauralyn Swanson, an elementary school teacher with 30 years’ experience, taught for one year at the defendant School, where she received an excellent performance evaluation. A new principal, John Lowe, assigned Swanson to a different reading specialist position for the following school year. However, in the summer, Swanson was diagnosed with breast cancer and underwent a mastectomy. She expressed concern to Lowe about her new assignment due to a lack of training. Lowe told Swanson that she could attend a week-long training session that was scheduled two weeks after her surgery.
Swanson attended the session until the last day when she experienced complications from her surgery and was taken to the emergency room. Swanson took a medical leave from October until March to undergo radiation and chemotherapy treatments.
That summer, when Lowe informed Swanson that he was assigning her to teach fifth grade, she objected that her health would prevent her from doing the work required to prepare for the new assignment and she requested to teach the second grade class which had an opening. Since Swanson had recently taught this grade, it would require less preparation time.
Lowe’s response was to assign Swanson to a kindergarten class and to assign another teacher to the second grade class. Swanson expressed concern because she was afraid of being exposed to the many illnesses that kindergarten children routinely have. Lowe, however, refused to change the assignment.
In the fall, Swanson was hospitalized due to various health issues and was unable to work until December. She attributed her health issues to her kindergarten assignment.
In January, Lowe scheduled Swanson for her annual teacher evaluation which included his observation of three of her classes. She asked him to provide the preevaluation form describing the School’s expectations for each lesson that was customarily provided to teachers in advance. Lowe promised to provide the form but failed to do so for all three observations. Lowe evaluated Swanson’s performance on each lesson as poor and gave her the option to resign or accept a remediation plan.
Swanson selected the remediation plan, which included three more observations and the opportunity to obtain assistance to address the deficiencies. Swanson requested a mentor teacher but was not provided one. Instead, she was allowed to observe two other kindergarten teachers.
In late February, Lowe observed Swanson’s class and rated her as meeting expectations on the form. After his second observation a few days later, Lowe told Swanson that she would receive a positive evaluation. However, the following day, he asked her to resign in lieu of receiving a “non-re-elect” notice. Since Swanson had not taught two complete school years, the District could opt not to offer her a contract for the following school year. Lowe further told Swanson that if she resigned, he would give her a positive evaluation but if she refused, he would give her a negative evaluation. Swanson refused to resign, Lowe gave her a negative evaluation on the second observation and cancelled the third observation on the basis that there was nothing that Swanson could do to change his decision not to renew her contract.
Shortly thereafter, Lowe told Swanson that she would have a final observation. She requested and was provided a different administrator to conduct the observation. However, unbeknownst to Swanson, the week prior, the School’s Board of Education had already voted not to renew Swanson’s contract. She was notified of the decision after the final observation resulted in unsatisfactory ratings.
In her appeal, Swanson contended that once the School knew that she had cancer and took a medical leave, it engaged in a course of conduct designed to set her up for failure by giving her difficult assignments without the resources required to succeed such that the School could then use her performance as a pretext for letting her go.
The Court noted that a single failure to reasonably accommodate an employee may create liability, despite other efforts at accommodation. It concluded that the School failed to reasonably accommodate Swanson by refusing to grant her request to teach second grade since she had recently taught this grade such that the preparation time would be less (and less taxing on her) and there was an opening. It rejected the School’s claim that it was not required to provide the best accommodation or the one that the employee requested. The Court relied on prior case law that held that employers have a duty to reassign a disabled employee if an already funded, vacant position at the same level exists. The Court further rejected the School’s contention that school districts would suffer undue hardship if teachers could choose their own assignments, since here, Swanson sought the second grade assignment for a specific reason, not simply because she preferred it.
The Court noted that liability for failing to engage in the interactive process hinges on the objective circumstances surrounding the parties’ breakdown in communication. The fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability. The School contended that it engaged in this process when it switched Swanson’s assignment from the fifth grade to kindergarten. However, the Court held that the School failed to show that it discussed with Swanson why it could not grant her request for the second grade assignment.
Setting Employees Up to Fail is Never a Good Strategy. I continue to run across managers who think that the best strategy for getting rid of someone is to make their life miserable so that they simply quit, thus negating a wrongful termination claim (or so the thinking goes). This case demonstrates the fallacy of such an approach with its examples of failing to provide the evaluation forms to Swanson prior to the observations, providing inconsistent feedback, threatening a negative evaluation unless she resigned, and failing to provide adequate assistance for Swanson to improve. All of this painted the picture of an employer who had made up its mind to get rid of an employee without giving her a fair shake — with the added risk factor of the employee battling cancer.
Document the Reasonable Accommodation Process and Understand what the Employee Needs. This case demonstrates the importance of documenting the employee’s request for accommodation and the employer’s efforts to understand the request. The School may not have known why Swanson wanted the second grade assignment and assumed that it was merely her preference, such that the kindergarten assignment seemed reasonable. Employers should keep in mind that there is little to gain by making assumptions in this context. Indeed, the interactive process is designed to address this very thing. Employers should thus ask employees to explain their requested accommodations (e.g., “Why are you requesting the second grade assignment?”)
Remember the Power of Bad Timing. Another pivotal fact in this case was the bad timing of the Board’s decision not to renew Swanson’s contract before her evaluative observations were completed. This certainly did not help the School establish that it was simply terminating an employee for poor performance. Instead, it made the School look worse. Yet, this was something completely within the School’s control as to when the final decision was made about Swanson’s continued employment.