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Only the Westlaw citation is currently available.California Rules of Court, rule 8.1115, restrictscitation of unpublished opinions in Californiacourts.Court of Appeal, Fourth District, Division 3, Cali-fornia.Valerie HYATT, Plaintiff and Appellant,v.ORANGE COUNTY FIRE AUTHORITY et al.,Defendants and Respondents.
No. G041822.(Super.Ct.No. 06CC04550).
Aug. 20, 2010.Appeal from a judgment of the Superior Court of Orange County,Sheila Fell, Judge. Affirmed in part, reversed in part, and remanded for a new trial.John J. Gulinofor Plaintiff and Appellant.Haight Brown & Bonesteel,Jules S. Zeman,Kevin M. OsterbergandJohn M. Wilkersonfor Defend- ants and Respondents.OPINIONFYBEL, J.
Valerie Hyatt appeals from a judgment in favorof her former employer, the Orange County FireAuthority (OCFA), and its director of human re-sources, Zenovy Jakymiw, on her complaint al-leging
under the California FairEmployment and Housing Act,Government Codesection 12900 et seq.(FEHA).FN1Hyatt allegedthat the OCFA terminated her employment basedon a disability, failed to make reasonable accom-modation, failed to engage in the interactive pro-cess, retaliated against her, and discharged her inviolation of 
policy, and that both the OCFAand Jakymiw harassed her.FN1.Further code citations are to the Gov-ernment Code.After a bench trial based on a stipulated set of factsand joint exhibits, the trial court found Hyatt failedto prove she could perform her assigned tasks withor without reasonable accommodation, her disabil-ity was the motivating reason for her dischargefrom employment, she was qualified to fill any va-cant position, or the OCFA retaliated against herfor requesting an accommodation.We agree with Hyatt that the trial court's findingson her claims for failure to accommodate and dis-charge from employment in violation of 
policy are not supported by substantial evidence .FN2There is no dispute that Hyatt is disabled with-in the meaning of the FEHA. The undisputed evid-ence established a neuropsychologist retained bythe OCFA concluded Hyatt could perform her jobfunctions if provided additional training and “(desk side) assistance,” a reasonable accommodation of her disability. The evidence established the OCFAdid not provide that additional training. The neuro-psychologist's later conclusion that Hyatt could notperform her job functions even with accommoda-tion was based on misinformation or a miscommu-nication about the training Hyatt had received.FN2.Hyatt does not challenge the trialcourt's decision on her causes of action forharassment and retaliation in violation of the FEHA, and for breach of the impliedcovenant of good faith and fair dealing.In addition, the evidence does not support a findingthe OCFA engaged in good faith in the interactiveprocess. There is no evidence the OCFA commu-nicated with Hyatt about the recommended accom-Page 1Not Reported in Cal.Rptr.3d, 2010 WL 3280261 (Cal.App. 4 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)(Cite as: 2010 WL 3280261 (Cal.App. 4 Dist.))
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
modation at any stage before terminating her em-ployment.We therefore reverse the judgment on the causes of action for
in employment in viola-tion of the FEHA and for discharge from employ-ment in violation of 
policy and remand withdirections for a new trial on those causes of action,as limited by the disposition. The judgment is af-firmed on the causes of action for harassment andretaliation in violation of the FEHA and for breachof the implied covenant of good faith and fair deal-ing.
Hyatt, who was born in 1945, was first employedby the OCFA (at that time, the Orange County FireDepartment) in October 1988 as a fire communica-tions dispatcher. She held that position in January2000, when she became seriously ill withpneumo-nia. Hyatt suffered respiratory arrest and was in acoma for eight days. After recuperating, she re-turned to work in 2000 as a fire communicationsdispatcher. Soon after she returned to work, it wasdetermined she was having difficulties performingher job duties.
OCFA representatives referred Hyatt to MarionFedoruk, M.D., and Linda Nelson, Ph.D., to de-termine why she was having difficulty performingher job duties as a fire communications dispatcher.Dr. Fedoruk, a clinical neuropsychologist at theUniversity of California, Irvine, Center for Occupa-tional and Environmental Health, interviewed andexamined Hyatt and concluded she had “possibleongoing neurocognitive deficit as associated withher January 2000 illness.”Dr. Nelson, a clinical neuropsychologist then at theUniversity of California, Irvine, examined and in-terviewed Hyatt and determined she “was able toadequately perform tasks where she was required todemonstrate verbal reasoning skills, expressive lan-guage, rote, passive attentional ability, and a gener-al fund of knowledge. In contrast, she experiencedproblems when attempting tests that measuredalertness to visual details, visuospatial organizationskills, spatial reasoning ability, and visual sequen-cing.” Dr. Nelson concluded Hyatt's disabilitycaused by her illness impaired her to the extent thatshe could no longer function as a fire communica-tions dispatcher.After receiving the opinions and conclusions of Drs. Fedoruk and Nelson, the OCFA determinedHyatt's disability prevented her from performingthe essential functions of the position of fire com-munications dispatcher. In May 2002, the OCFAaccommodated Hyatt's disability by placing her inthe position of office services specialist for theplanning and development services department. Hy-att's responsibilities included scheduling daily in-spections for new construction inspectors in re-sponse to requests for inspection by contractors andsubcontractors. When a contractor called to requestan inspection, Hyatt's task was to take down thecontractor's name and address, assign an inspectorto a specific geographical area, and schedule the in-spection.The office services specialist position paid less thanHyatt's former position as a fire communicationsdispatcher, so the OCFA advised Hyatt to seek dis-ability retirement from the Orange County
Retirement System (OCERS) to make up thedifference and supported her application. In April2002, the OCFA issued an “Employer's Statementof Disability” to the OCERS.A job performance evaluation report, from Decem-ber 2002, the first for Hyatt's new position, wasgenerally favorable. The report noted somescheduling errors, but stated that when Hyatt madethose errors, she “accepted the responsibility andresolved them in order to minimize impacts to bothstaff and the customer.”The next performance evaluation report, from July2003, mentioned deficiencies such as conductingpersonal business at work, putting in little effortPage 2Not Reported in Cal.Rptr.3d, 2010 WL 3280261 (Cal.App. 4 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)(Cite as: 2010 WL 3280261 (Cal.App. 4 Dist.))
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
and lack of attention to detail in performing specialassignments, failing to return phone calls promptly,and poor attendance. Hyatt received an“improvement neededrating on three of the sixperformance factors and a “standard” rating on theother three performance factors.
The July 2004 performance evaluation reportidentified as performance deficiencies making bet-ter use of “down time,” conducting personal busi-ness at work, using the Internet for personal mat-ters, scheduling errors, creating inefficient inspec-tion schedules, not following established proced-ures in creating inspection schedules, not workingas a team member, failure to return telephone callspromptly, forwarding calls into voice mail insteadof answering, expressing negative feelings follow-ing interaction with staff and customers, and poorattendance. Hyatt received an “improvementneededrating on three of the six performancefactors and a “standard” rating on the other threeperformance factors.Hyatt's supervisor, Cari Purkey determined Hyattwas making an extraordinary number of typograph-ical errors and scheduling mistakes, which Purkeybelieved were attributable to Hyatt's lack of atten-tion. Purkey discussed the matter with Hyatt, whotold Purkey her disability might explain those er-rors and mistakes. Hyatt read the July 2004 per-formance evaluation report and told Purkey it wasaccurate. Hyatt stated she had not been giving “herall” and at times became depressed from personalissues.Purkey placed Hyatt on a 90-day work plan identi-fying these areas as requiring improvement: “1. In-ability to handle multiple tasks-numerous phonecalls with concurrent radio traffic unable to multitask causing mistakes. [¶] 2. Lack of attention todetail-double booking of inspectors, scheduling in-spectors when they are not available for inspec-tions. [¶] 3. Fails to follow direction without directsupervision-scheduling errors causing the inspect-ors to drive excessively and be inefficient. [¶] 4.Uses poor judgment-driving without a driver[']s li-cense. [¶] 5. Overwhelmed at peak periods-makesmistakes, short demeanor with customers duringbusy times. [¶] 6. Poor attendance-missed 27% of the available work hours.”As of January 2005, Purkey was not satisfied withHyatt's progress. She presented Hyatt a “Notice of Intent to Suspend” without pay for three days basedon her “continued failure to sustain an acceptablelevel of performance” and failure to show improve-ment. The notice provided details of errors inscheduling inspections on 20 separate datesbetween July 21 and December 2, 2004, and noted,“[w]e have met over the past 90 workdays to dis-cuss your performance deficiencies, especially yourfailure to improve in the area of scheduling, yourmain responsibility.” In the notice, Purkey acknow-ledged that on December 13, 2004, Hyatt told her:“I cannot do the job because of my spatial aware-ness issues ... the doctors keep telling me that Ihave this problem and I finally understand. I do notsee things that are right in front of me like thescheduling mistakes we have been discussing.”After receiving the notice of intent to suspend, Hy-att was assigned a union representative and given a
(1975) 15 Cal.3d 194hearing. At the conclusion of the
hearing,OCFA representatives determined Hyatt's perform-ance difficulty might be due to a disability, not theresult of inattention to her job duties. The OCFAplaced the notice of intent to suspend in abeyanceand indicated it would take steps to determinewhether Hyatt's disability was affecting her abilityto perform her job as an office services specialist.
Jakymiw made arrangements for Hyatt to be in-terviewed again by Dr. Nelson. About this time,Hyatt learned the OCFA receptionist, LindaFlanagan, was retiring. Hyatt believed the recep-tionist position would be ideal for her and discussedher interest in the position with Purkey, OCFAsenior human resources analyst Laurie Reinhart,and OCFA chief Ed Fleming, who at the time wasthe receptionist's immediate supervisor. Flanaganretired in July 2005, leaving the receptionist posi-Page 3Not Reported in Cal.Rptr.3d, 2010 WL 3280261 (Cal.App. 4 Dist.)
Nonpublished/Noncitable (Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)(Cite as: 2010 WL 3280261 (Cal.App. 4 Dist.))
© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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