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.