Successfully mediated an employment disability discrimination case brought against a public entity water district. During his ten years of employment, Plaintiff suffered a series of work-related injuries to his forearms, elbows, shoulders, knees, hips and back. Surgery was required to repair both elbows and the right knee. He had multiple periods of being temporarily totally disabled for which he received workers compensation benefits. Plaintiff alleged that on each occasion when he was released to work, with physician-imposed restrictions, defendant failed to properly engage in the statutorily required interactive process, failed to accommodate his restrictions, and retaliated against him by placing him on an unpaid leave of absence after he refused to work on modified duty that would have resulted in loss of his supervisor pay rate. Plaintiff alleged constructive termination because the accumulated time on unpaid leave made it impossible for him to continue his employment and he was forced to seek new employment. He asserted causes of action arising under the Fair Employment and Housing Act (FEHA) and Cal. Labor Code. Defendant asserted that it was Plaintiff who failed to reasonably engage in the interactive process, that he refused reasonable modified duty plans, that whenever he returned to work he re-injured himself performing routine tasks, that he was unable to perform at least one of the essential duties of his job even with reasonable accommodations, and that he was not subjected to any adverse employment action, rather he voluntarily resigned to pursue a better opportunity in the private sector.
Hon. Paul Burdick (Ret.)
96 North Third Street Suite 350 San Jose, CA 95112