Page 1 Not 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.))

Only the Westlaw citation is currently available. California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts. Court of Appeal, Fourth District, Division 3, California. 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. Gulino for Plaintiff and Appellant. Haight Brown & Bonesteel, Jules S. Zeman, Kevin M. Osterberg and John M. Wilkerson for Defendants and Respondents.

modation, failed to engage in the interactive process, retaliated against her, and discharged her in violation of public policy, and that both the OCFA and Jakymiw harassed her. FN1. Further code citations are to the Government Code. After a bench trial based on a stipulated set of facts and joint exhibits, the trial court found Hyatt failed to prove she could perform her assigned tasks with or without reasonable accommodation, her disability was the motivating reason for her discharge from employment, she was qualified to fill any vacant position, or the OCFA retaliated against her for requesting an accommodation. We agree with Hyatt that the trial court's findings on her claims for failure to accommodate and discharge from employment in violation of public policy are not supported by substantial evidence . FN2 There is no dispute that Hyatt is disabled within the meaning of the FEHA. The undisputed evidence established a neuropsychologist retained by the OCFA concluded Hyatt could perform her job functions if provided additional training and “(desk side) assistance,” a reasonable accommodation of her disability. The evidence established the OCFA did not provide that additional training. The neuropsychologist's later conclusion that Hyatt could not perform her job functions even with accommodation was based on misinformation or a miscommunication about the training Hyatt had received. FN2. Hyatt does not challenge the trial court's decision on her causes of action for harassment and retaliation in violation of the FEHA, and for breach of the implied covenant of good faith and fair dealing. In addition, the evidence does not support a finding the OCFA engaged in good faith in the interactive process. There is no evidence the OCFA communicated with Hyatt about the recommended accom-

OPINION FYBEL, J. INTRODUCTION *1 Valerie Hyatt appeals from a judgment in favor of her former employer, the Orange County Fire Authority (OCFA), and its director of human resources, Zenovy Jakymiw, on her complaint alleging discrimination under the California Fair Employment and Housing Act, Government Code FN1 section 12900 et seq. (FEHA). Hyatt alleged that the OCFA terminated her employment based on a disability, failed to make reasonable accom-

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Page 2 Not 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.))

modation at any stage before terminating her employment. We therefore reverse the judgment on the causes of action for discrimination in employment in violation of the FEHA and for discharge from employment in violation of public policy and remand with directions for a new trial on those causes of action, as limited by the disposition. The judgment is affirmed on the causes of action for harassment and retaliation in violation of the FEHA and for breach of the implied covenant of good faith and fair dealing. FACTS Hyatt, who was born in 1945, was first employed by the OCFA (at that time, the Orange County Fire Department) in October 1988 as a fire communications dispatcher. She held that position in January 2000, when she became seriously ill with pneumonia. Hyatt suffered respiratory arrest and was in a coma for eight days. After recuperating, she returned to work in 2000 as a fire communications dispatcher. Soon after she returned to work, it was determined she was having difficulties performing her job duties. *2 OCFA representatives referred Hyatt to Marion Fedoruk, M.D., and Linda Nelson, Ph.D., to determine why she was having difficulty performing her job duties as a fire communications dispatcher. Dr. Fedoruk, a clinical neuropsychologist at the University of California, Irvine, Center for Occupational and Environmental Health, interviewed and examined Hyatt and concluded she had “possible ongoing neurocognitive deficit as associated with her January 2000 illness.” Dr. Nelson, a clinical neuropsychologist then at the University of California, Irvine, examined and interviewed Hyatt and determined she “was able to adequately perform tasks where she was required to demonstrate verbal reasoning skills, expressive language, rote, passive attentional ability, and a gener-

al fund of knowledge. In contrast, she experienced problems when attempting tests that measured alertness to visual details, visuospatial organization skills, spatial reasoning ability, and visual sequencing.” Dr. Nelson concluded Hyatt's disability caused by her illness impaired her to the extent that she could no longer function as a fire communications dispatcher. After receiving the opinions and conclusions of Drs. Fedoruk and Nelson, the OCFA determined Hyatt's disability prevented her from performing the essential functions of the position of fire communications dispatcher. In May 2002, the OCFA accommodated Hyatt's disability by placing her in the position of office services specialist for the planning and development services department. Hyatt's responsibilities included scheduling daily inspections for new construction inspectors in response to requests for inspection by contractors and subcontractors. When a contractor called to request an inspection, Hyatt's task was to take down the contractor's name and address, assign an inspector to a specific geographical area, and schedule the inspection. The office services specialist position paid less than Hyatt's former position as a fire communications dispatcher, so the OCFA advised Hyatt to seek disability retirement from the Orange County Employees Retirement System (OCERS) to make up the difference and supported her application. In April 2002, the OCFA issued an “Employer's Statement of Disability” to the OCERS. A job performance evaluation report, from December 2002, the first for Hyatt's new position, was generally favorable. The report noted some scheduling errors, but stated that when Hyatt made those errors, she “accepted the responsibility and resolved them in order to minimize impacts to both staff and the customer.” The next performance evaluation report, from July 2003, mentioned deficiencies such as conducting personal business at work, putting in little effort

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and lack of attention to detail in performing special assignments, failing to return phone calls promptly, and poor attendance. Hyatt received an “improvement needed” rating on three of the six performance factors and a “standard” rating on the other three performance factors. *3 The July 2004 performance evaluation report identified as performance deficiencies making better use of “down time,” conducting personal business at work, using the Internet for personal matters, scheduling errors, creating inefficient inspection schedules, not following established procedures in creating inspection schedules, not working as a team member, failure to return telephone calls promptly, forwarding calls into voice mail instead of answering, expressing negative feelings following interaction with staff and customers, and poor attendance. Hyatt received an “improvement needed” rating on three of the six performance factors and a “standard” rating on the other three performance factors. Hyatt's supervisor, Cari Purkey determined Hyatt was making an extraordinary number of typographical errors and scheduling mistakes, which Purkey believed were attributable to Hyatt's lack of attention. Purkey discussed the matter with Hyatt, who told Purkey her disability might explain those errors and mistakes. Hyatt read the July 2004 performance evaluation report and told Purkey it was accurate. Hyatt stated she had not been giving “her all” and at times became depressed from personal issues. Purkey placed Hyatt on a 90-day work plan identifying these areas as requiring improvement: “1. Inability to handle multiple tasks-numerous phone calls with concurrent radio traffic unable to multi task causing mistakes. [¶] 2. Lack of attention to detail-double booking of inspectors, scheduling inspectors when they are not available for inspections. [¶] 3. Fails to follow direction without direct supervision-scheduling errors causing the inspectors to drive excessively and be inefficient. [¶] 4. Uses poor judgment-driving without a driver[']s li-

cense. [¶] 5. Overwhelmed at peak periods-makes mistakes, short demeanor with customers during busy times. [¶] 6. Poor attendance-missed 27% of the available work hours.” As of January 2005, Purkey was not satisfied with Hyatt's progress. She presented Hyatt a “Notice of Intent to Suspend” without pay for three days based on her “continued failure to sustain an acceptable level of performance” and failure to show improvement. The notice provided details of errors in scheduling inspections on 20 separate dates between July 21 and December 2, 2004, and noted, “[w]e have met over the past 90 workdays to discuss your performance deficiencies, especially your failure to improve in the area of scheduling, your main responsibility.” In the notice, Purkey acknowledged that on December 13, 2004, Hyatt told her: “I cannot do the job because of my spatial awareness issues ... the doctors keep telling me that I have this problem and I finally understand. I do not see things that are right in front of me like the scheduling mistakes we have been discussing.” After receiving the notice of intent to suspend, Hyatt was assigned a union representative and given a Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 hearing. At the conclusion of the Skelly hearing, OCFA representatives determined Hyatt's performance difficulty might be due to a disability, not the result of inattention to her job duties. The OCFA placed the notice of intent to suspend in abeyance and indicated it would take steps to determine whether Hyatt's disability was affecting her ability to perform her job as an office services specialist. *4 Jakymiw made arrangements for Hyatt to be interviewed again by Dr. Nelson. About this time, Hyatt learned the OCFA receptionist, Linda Flanagan, was retiring. Hyatt believed the receptionist position would be ideal for her and discussed her interest in the position with Purkey, OCFA senior human resources analyst Laurie Reinhart, and OCFA chief Ed Fleming, who at the time was the receptionist's immediate supervisor. Flanagan retired in July 2005, leaving the receptionist posi-

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tion open. Dr. Nelson conducted a neuropsychological examination of Hyatt on April 9 and 16, 2005 “to determine what cognitive and/or emotional problems may be associated with poor job performance.” Dr. Nelson prepared a report (the May 2005 Report) in which she concluded: “The referral question asks if Ms. Hyatt is capable of performing her current job duties. Results of the present examination support that she is capable of performing current job duties, given additional job training.” Dr. Nelson explained: “[Hyatt] continues to demonstrate cognitive problems similar to those based on testing four years ago. Specifically, the patient continues to show problems on tasks requiring visuomotor coordination, select visual memory (for abstract designs), and visual, timed tasks. This means that she performs poorly when required to rapidly assemble materials according to a completed design. [¶] Translated to the work setting, the patient will likely experience problems working a keyboard (on a computer) to reflect changes on the screen. Visual memory functioning was variable, but she tested well on a measure of visual memory that related to job tasks. Consequently, she should be able to learn and recall written, step by step instructions. But implementation of these procedures using a computer will be challenging. The challenge comes from Ms. Hyatt's poor spatial skills and problems in eye/hand coordination. These problems were supported by poor performance across four different tests, each of which required strong eye/hand coordination for successful performance.” Dr. Nelson reported specific neurocognitive problems in two areas: (1) “eye/hand coordination” and (2) “ability to foresee potential problems related to job tasks.” The first problem, according to Dr. Nelson, “will likely impede [Hyatt's] work on the computer, a major part of her current job duties.” The second problem was “affecting her ability to predict and forestall conflicts regarding inspections.” Despite those problems, test results showed that Hyatt

“should be able to learn new strategies to improve job performance” and that she “is capable of learning and performing current job duties.” Dr. Nelson made four recommendations to assist Hyatt in performing her job. One recommendation was that “[a]dditional job training may be required, with real time (desk side) assistance. Job training should focus on managing the computer and adherence to all necessary steps for successful scheduling.” *5 The May 2005 Report also noted that Hyatt wanted to transfer to the receptionist position, “but Mr. Jakymiw indicated that receptionist responsibilities would be similar to her current duties and probably not result in sufficient improvement.” (Italics omitted.) The May 2005 Report was faxed to Jakymiw on May 23, 2005. He discussed the report with Reinhart, Purkey, and assistant fire marshal Brett Petroff. They reviewed the recommended accommodations and decided they could work with Hyatt to develop “[n]ew strategies to improve job performance.” Hyatt was not given a copy of the May 2005 Report at that time. In June 2005, Purkey met with Hyatt and watched her perform her job functions. Simulations were given and Hyatt was observed taking phone calls and making scheduling entries on her computer. Purkey observed Hyatt make many scheduling errors and record incorrect telephone numbers of callers. While Hyatt was employed as an office services specialist, an enhanced computer system was installed that caught common data entry mistakes, such as scheduling an inspection during an incorrect timeframe. The computer system enhancements were made “in part to assist Ms. Hyatt in her position as a scheduler.” Hyatt, as all OCFA staff, received training in the computer system enhancements.

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During the summer of 2005, the OCFA became aware Hyatt was interested in transferring into the receptionist position when Flanagan retired. After learning of Hyatt's interest in the receptionist position, Jakymiw asked an employee who had worked in that position what it entailed. He was told the reception desk required the ability to perform multiple tasks and to handle simultaneously a large volume of both telephone calls and walk-in traffic. The receptionist also was responsible for maintaining a master calendar for the facility, issuing visitor cards, directing people to their destination, directing telephone calls, and responding to inquiries. Jakymiw concluded Hyatt could not perform the job duties of receptionist because the workload was greater than that of office services specialist and required the ability to multitask. At some point, Reinhart spoke to Dr. Nelson about Hyatt's suitability for the receptionist position. Nobody at the OCFA spoke with Hyatt about the receptionist position, its duties and responsibilities, or whether the position might serve as an accommodation for her disability. The receptionist position was filled in September 2005. In September 2005, Purkey, Petroff, and Reinhart conferred by telephone with Dr. Nelson to discuss Hyatt's job performance since April 2005, the results of Hyatt's performance test conducted in June 2005, and “specific interventions that were instituted by OCFA to help improve job performance.” They asked Dr. Nelson to prepare an updated report. Dr. Nelson interviewed Hyatt again on October 23, 2005, and prepared an updated report dated November 1 (the November 2005 Report). The November 2005 Report stated that Hyatt initially denied receiving any assistance or accommodations, but later acknowledged she had been given instruction on using the new computer system from a “vendor to OCFA.” The training consisted of two one-hour sessions of personal training. Hyatt also listened to training sessions in the new computer system provided to other employees. On one occasion, Hy-

att received assistance in data input from a supervisor. She denied receiving any telephone training. Hyatt attributed her mistakes during the June 2005 test to nervousness. *6 In the November 2005 Report, Dr. Nelson concluded: “Based on information obtained during the telephone conference call with OCFA, it seems that performance problems continue to be present. Specifically, despite several attempts to provide additional job training (e.g., computer based), increased oversight, and feedback, it seems that Ms. Hyatt[ ] is unable to effectively schedule field inspections and use the computer, both of which represent primary job responsibilities and job requirements. Additionally, per supervisor report, this employee seems to have little to no insight into her current job difficulties or how to correct them. Based on information obtained from OCFA, from the employee , and from record review (neuropsychological exam report dated Spring, 2005), it appears that Ms. Hyatt[ ] is not capable of learning and satisfactorily performing her current job duties and responsibilities as office services specialist for OCFA.” The November 2005 Report stated, “[Hyatt's] former supervisor reportedly spent at least 1 hr./day over the preceding months working with Ms. Hyatt[ ].” That statement was incorrect. In fact, when Dr. Nelson prepared the November 2005 Report, Hyatt had not received any additional “real time (desk side)” job training or assistance, as Dr. Nelson had recommended, other than the training in the enhanced computer system. The November 2005 Report stated that, during the September telephone conference, examples of accommodations provided Hyatt were discussed; however, the report does not give any examples. Hyatt was not given a copy of the November 2005 Report. After Dr. Nelson issued the November 2005 Report, Hyatt went to Reinhart and said, “[m]y boss is just trying to get rid of me.” Reinhart told Hyatt the issue was not “of not wanting her or her value,” but “what we needed to do, if possible, to accommodate her to create some accommodation for her so that

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she could be successful .” In her deposition, Reinhart testified she discussed accommodations with Hyatt but could not remember specific accommodations discussed. Hyatt said, “she didn't need accommodation,” she “just needed to find some ways that she could jog her memory and help her cue in on things.” On January 19, 2006, Hyatt was handed a letter dated January 18, 2006, authored and signed by Jakymiw, advising her, among other things, that the OCFA had concluded she could no longer perform the essential functions of her position as an office services specialist, even with a reasonable accommodation, and that the OCFA had evaluated current open positions and concluded she was not qualified for any. The letter advised Hyatt the OCFA would inform the OCERS that she should be retired for disability. In a letter to Jakymiw, dated January 20, 2006, Hyatt's counsel expressed disagreement with the conclusions of the January 18 letter and asserted a FEHA violation. Counsel stated: “We note, among many other things, that there is an absolute absence of any participation in an interactive process with Ms. Hyatt to determine effective reasonable accommodations and whether or not any such accommodations can be provided.” *7 Four days later, Jakymiw prepared and sent a letter to Hyatt as a follow up to a meeting she had with Reinhart and Petroff on January 19. The letter stated: “In that meeting it was mentioned that the [OCFA] did not have any other positions available for which you would meet the minimum qualifications. This determination was based on the information available to the [OCFA] at that time. In order to ensure that all opportunities for reasonable accommodation have been explored, I am enclosing the attached job descriptions of positions currently available.” Enclosed were job descriptions for the positions of senior communications technician, fire prevention specialist, fire prevention trainee, senior accountant, risk management safety officer, and heavy fire equipment operator. The letter asked for

a response no later than February 3, 2006. Hyatt's last day of work at the OCFA was January 31, 2006. She subsequently applied for retirement benefits from the OCERS. On February 7, 2006, Jakymiw sent Hyatt a copy of the May 2005 Report. Hyatt had never before received a copy of that report. PROCEDURAL HISTORY Hyatt's complaint asserted five causes of action. Against the OCFA, she asserted causes of action for discrimination in employment in violation of the FEHA (first cause of action); retaliation in violation of the FEHA (third cause of action); wrongful discharge in violation of public policy (fourth cause of action); and breach of the implied covenant of good faith and fair dealing (fifth cause of action). Against both the OCFA and Jakymiw, she asserted a cause of action for harassment in violation of the FEHA (second cause of action). The parties agreed to submit the matter to the trial court for decision based upon a set of stipulated facts, exhibits, discovery, and excerpts from deposition transcripts. The trial court issued a tentative statement of decision in favor of the OCFA and Jakymiw on all causes of action. After receiving proposals to the contents of the statement of decision and objections to the statement of decision from Hyatt, the trial court ordered that the tentative statement of decision become the statement of decision without change. The trial court found Hyatt “failed to establish she could perform the Office Service Specialist position with or without reasonable accommodation” and that “[t]o the extent this [failure to accommodate] cause of action may be construed as one for failure to engage in a good faith interactive process, since [Hyatt] has not established she could perform the essential functions of any position, OCFA has no liability under this theory.”

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STANDARD OF REVIEW In applying the substantial evidence rule, we accept as true the evidence supporting the judgment, disregard conflicting evidence, and draw all reasonable inferences in favor of the judgment. ( Murray's Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1285.) We do not weigh the evidence or judge the credibility of witnesses. (Ibid.) Our review is limited to determining whether the record contains substantial evidence, contradicted or uncontradicted, which supports the judgment. ( Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.) DISCUSSION I. Failure to Accommodate *8 The trial court found against Hyatt on her failure to accommodate cause of action, concluding that she failed to show she could perform her job functions as office services specialist with or without accommodation. Hyatt argues the trial court's determination on her failure to accommodate cause of action is contrary to the law and unsupported by the evidence. The FEHA makes it unlawful for an employer to fail to make reasonable accommodation of an employee's known physical or mental disability unless the employer demonstrates an accommodation would produce undue hardship to the employer's operation. (§ 12940, subd. (m).) The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. ( Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010 (Scotch ).) It is undisputed Hyatt

has a disability under the FEHA. The term “reasonable accommodation” means “ ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ “ ( Scotch, supra, 173 Cal.App.4th at p. 1010.) Examples of reasonable accommodations include: “(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (§ 12926, subd. (n); Cal.Code Regs., tit. 2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).) An employer is not required to make an accommodation “that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.” (§ 12940, subd. (m).) On Hyatt's claim for failure to accommodate, the trial court found: “[Hyatt] has failed to establish she could perform the Office Service Specialist position with or without reasonable accommodation. Dr. Nelson's reports of May, 2005, and November, 2005, establish [Hyatt]'s performance problems were partly attributable to neurocognitive impairment and partly to her underlying personality. The latter affected her ability to compensate for the former, resulting in continued substandard performance. [Hyatt] does not dispute Dr. Nelson's testing methodology or its conclusions. [Hyatt] does not dispute Dr. Nelson's analysis of the requirements of the position. [Hyatt] offers no evidence Dr. Nelson's conclusions about her ability to perform the job satisfactorily were wrong. [Hyatt] disputes the amount of extra training she received, but does not identify how she believes it would have improved her performance.” *9 As Hyatt argues, the trial court's findings do not fully take into account the May 2005 Report. There,

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Dr. Nelson found, “[r]esults of the present examination support that [Hyatt] is capable of performing current job duties, given additional job training.” (Italics added.) Dr. Nelson made four recommendations. The third recommendation was “[a]dditional job training may be required, with real time (desk side) assistance. Job training should focus on managing the computer and adherence to all necessary steps for successful scheduling.” Dr. Nelson acknowledged that while Hyatt had not mastered the computer, “[s]he seems capable of doing so, but will require additional, more specialized training, as indicated above.” The undisputed evidence established that between the time of the May 2005 Report and the termination of Hyatt's employment in 2006, Hyatt had not received the additional training and desk-side assistance recommended by Dr. Nelson. During that period of time, Hyatt received two hours of oneon-one training in the enhanced computer system, was permitted to “listen[ ] in” on other training sessions in the enhanced computer system, and, on one occasion, received assistance in data input from a supervisor. The training sessions Hyatt received in the computer system enhancements were not intended to accommodate her disability: The training sessions were conducted by a representative from a vendor and were the same training sessions other OCFA staff received. Purkey stated in a declaration the computer system enhancements were made “in part to assist Ms. Hyatt in her position as a scheduler.” That statement is meaningful only in the sense the OCFA installed the computer system enhancements to assist all schedulers improve performance. But Purkey did not declare the OCFA installed the computer system enhancement as an accommodation of Hyatt's disability, and such an assertion would not be credible. There is no evidence that anyone from the OCFA informed Dr. Nelson it had installed the computer system enhancements in whole or part as an accommodation of Hyatt's disability. In the November 2005 Report, Dr. Nelson con-

cluded Hyatt was not capable of performing her job duties as an office services specialist. Dr. Nelson had been misinformed, however, of the training Hyatt had received or had misunderstood her conversations with others. The November 2005 Report stated, “[Hyatt's] former supervisor reportedly spent at least 1 hr./day over the preceding months workFN3 ing with Ms. Hyatt[ ].” There was no other evidence that Hyatt received an hour of training each day. The source of information for that statement must have been the conference call on September 15, 2005 with Dr. Nelson, Reinhart, Purkey, and Petroff. Reinhart testified in her deposition, “it is my understanding that [Hyatt] had a number of hours of having somebody sit by her side to train her” but did not know who provided the training. Although Reinhart believed Purkey might have provided training after June 2005, Purkey testified she was unaware of any such additional training and the only training Hyatt might have received was from a “contract employee ” who provided training to the staff on the new computer system. Petroff testified the only training of which he was aware was orientation in the new computer system, which was provided to all staff. He could not recall anyone advising Dr. Nelson about the amount of training Hyatt had received since the May 2005 Report. The only training Purkey and Petroff could identify was the training sessions offered to all staff in the enhanced computer system. FN3. Because no hearsay objection was made to the November 2005 Report, this statement itself may be considered evidence Hyatt did receive training for one hour each day. But this statement would not be sufficient to support a finding that Hyatt received such training. The statement lacks attribution, does not describe the nature of the training, and is uncorroborated by the testimony of anyone who spoke with Dr. Nelson. *10 Yet, in reaching the decision to terminate Hyatt's employment, the OCFA relied on Dr. Nelson's

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conclusion in the November 2005 Report that Hyatt could not perform her job despite significant additional training-training the OCFA knew she had not received. The OCFA does not contend that Dr. Nelson's proposed accommodation of additional training and “real time (desk side) assistance” would have been unreasonable or would have produced undue hardship to its operation. Reinhart testified in her deposition the OCFA was willing to provide Hyatt the job training recommended by Dr. Nelson. The trial court misapplied the law by concluding Hyatt failed to show additional training would have improved her performance. An employee is not required to show an accommodation “is certain or even likely to be successful” to prove it is reasonable. ( Humphrey v. Memorial Hospitals Assn. (9th Cir.2001) 239 F.3d 1128, 1136.) “As long as a reasonable accommodation available to the employer could have plausibly enabled a handicapped employee to adequately perform [her] job, an employer is liable for failing to attempt that accommodation.” ( Kimbro v. Atlantic Richfield Co. (9th Cir.1989) 889 F.2d 869, 879.) The May 2005 Report explained why additional training would improve Hyatt's performance and concluded Hyatt could perform her job functions if provided additional training. The evidence thus showed that Hyatt was not given the additional training and desk-side assistance Dr. Nelson had recommended she receive as an accommodation. With such training, Dr. Nelson believed Hyatt could perform her job duties as office services specialist. Dr. Nelson's conclusion in the November 2005 Report that Hyatt could not perform those job duties was based largely, if not exclusively, on the mistaken belief Hyatt had received many hours of such additional training. By failing to provide Hyatt the training recommended by Dr. Nelson, the OCFA failed to accommodate Hyatt's disability and engaged in an unlawful employment practice under section 12940, subdivision (m).

II. Failure to Engage in the Interactive Process Hyatt's claim the OCFA failed to engage in the interactive process in good faith was included in her first cause of action, for discrimination in employment under the FEHA. The trial court found against Hyatt on her claim for failure to engage in the interactive process because she “has not established she could perform the essential functions of any position.” Hyatt argues that finding is contrary to the evidence. She contends the OCFA failed to engage in the interactive process in good faith because it did not meaningfully communicate with her about the receptionist position, did not give her preferential consideration in filling that position, and did not provide her desk-side training recommended by Dr. Nelson as an accommodation. Under the FEHA, it is an unlawful employment practice “to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (§ 12940, subd. (n).) Section 12940, subdivision (n) imposes separate duties on the employer to engage in the interactive process and to make reasonable accommodations. ( Scotch, supra, 173 Cal.App.4th at p. 1003.) *11 The interactive process required by the FEHA is an informal process to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. ( Scotch, supra, 173 Cal.App.4th at p. 1013.) Once the interactive process is initiated, the employer's obligation to engage in the process in good faith is continuous. “ ‘[T]he employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the

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Page 10 Not 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.))

employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problemsolving contemplated by the ADA [Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) ], by encouraging employers to seek to find accommodations that really work....’ [Citation.]” (Ibid.) “ ‘The interactive process is at the heart of the [FEHA]'s process and essential to accomplishing its goals. It is the primary vehicle for identifying and achieving effective adjustments which allow disabled employees to continue working without placing an “undue burden” on employers.’ “ ( Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 261-262.) “To prevail on a claim under section 12940, subdivision (n) for failure to engage in the interactive process, an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.” ( Scotch, supra, 173 Cal.App.4th at p. 1018.) Hyatt contends the receptionist position was such a reasonable accommodation. The trial court found that Hyatt “has failed to establish she could perform the essential functions of the General Receptionist position with or without reasonable accommodation.” Substantial evidence supported that finding. Reinhart testified the receptionist's job functions included “dealing with irate people, having multiple phone lines ringing at once, having to get phone calls through to the right person.” She spoke with Jakymiw and Dr. Nelson about Hyatt's suitability for the receptionist position. After speaking with his administrative assistant about the receptionist's duties, Jakymiw formed the opinion that Hyatt was not suited to the receptionist position because the workload was greater than that of her position as office services specialist and required the ability to multitask. In the May 2005 report, Dr. Nelson wrote: “Ms. Hyatt requested primary receptionist responsibilities (transfer of job duties); but Mr. Jakymiw indicated that receptionist responsibilities

would be similar to her current duties and probably not result in sufficient improvement.” (Italics omitted.) Hyatt's 90-day work plan from 2004 identified “[i]nability to handle multiple tasks” as an area needing improvement. Evidence was presented that would have supported a finding that Hyatt could perform the receptionist job functions. For example, the declaration of Flanagan, whose retirement created the vacancy in the receptionist position, stated the job involved very little data entry, and Dr. Nelson observed Hyatt had outstanding verbal and interpersonal skills. Our review is limited, however, to determining whether the record contains substantial evidence, contradicted or uncontradicted, to support the trial court's finding. ( Jameson v. Five Feet Restaurant, Inc., supra, 107 Cal.App.4th at p. 143.) *12 Because substantial evidence supported the finding that Hyatt could not perform the job functions of receptionist, the OCFA cannot be liable for failure to engage in the interactive process for not communicating with her about that position or giving her preferential treatment in filling it. Hyatt also argues the OCFA failed to engage in the interactive process in good faith by failing to implement Dr. Nelson's recommended accommodation of additional desk-side training. Cases from the Ninth Circuit Court of Appeals define the interactive process under the ADA as including both identification and implementation of the appropriate reasonable accommodation. ( Humphrey v. Memorial Hospitals Assn., supra, 239 F.3d 1128, 1137; Barnett v. U.S. Air, Inc. (9th Cir.2000) 228 F.3d 1105, 1114.) We need not decide whether the interactive process required under the FEHA also extends to implementation of the accommodation. We conclude the OCFA failed to engage in the interactive process in good faith because there is no evidence to suggest anyone at the OCFA communicated with Hyatt about the May 2005 Report and its recommended accommodations, including additional training and desk-side assistance. The OCFA was not required

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Page 11 Not 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.))

to give Hyatt a copy of either of Dr. Nelson's reports, but, as part of the interactive process, should have at least discussed with her the proposed accommodations. In the November 2005 Report, Dr. Nelson noted that Hyatt could not perform her job duties based on the mistaken belief she had received an hour per day of desk-side training. After receiving that report, the OCFA did not communicate with Hyatt about whether she had received that desk-side training or whether further accommodation was needed. ( Scotch, supra, 173 Cal.App.4th at p. 1013 [“ ‘[T]he employer's obligation to engage in the interactive process ... continues when ... the employer is aware that the initial accommodation is failing and further accommodation is needed’ “].) Although Reinhart testified in her deposition she discussed accommodations with Hyatt in November 2005, Reinhart could not remember specific accommodations discussed. There is no evidence that in this meeting Reinhart discussed the accommodation of additional training and desk-side assistance. Had the OCFA communicated with Hyatt about the accommodation of additional training and desk-side assistance, as recommended in the May 2005 Report, and maintained communication with her, a successful plan of additional job training with deskside assistance, or some other accommodation, more likely would have been devised and implemented. The OCFA had a duty as part of the interactive process to “ ‘undertake reasonable efforts to communicate its concerns' “ and to “ ‘make available to the other information which is available, or more accessible, to one party.’ “ ( Scotch, supra, 173 Cal.App.4th at p. 1014.) The OCFA's lack of communication defeated the “ ‘framework of cooperative problem-solving contemplated by the [FEHA].” (Id. at p. 1013.) III. Termination of Employment in Violation of Public

Policy *13 The trial court concluded Hyatt's cause of action for termination of employment in violation of public policy failed because Hyatt did not prove she was entitled to relief under the FEHA. “Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision.” ( Turner v. AnheuserBusch, Inc. (1994) 7 Cal.4th 1238, 1252.) We have concluded the OCFA failed to accommodate Hyatt's disability in violation of the FEHA. The OCFA's termination of Hyatt's employment therefore violated fundamental public policy. DISPOSITION The judgment is affirmed on the causes of action for harassment and retaliation in violation of the FEHA and for breach of the implied covenant of good faith and fair dealing. The judgment is reversed and the matter is remanded with directions for a new trial on the causes of action against the OCFA for discrimination in employment in violation of the FEHA and for discharge from employment in violation of public policy; however, issues relating to the receptionist position shall not be retried because, as explained, substantial evidence supported the trial court's finding that Hyatt would not have been able to perform the job functions of that position. Appellant to recover costs incurred on appeal. WE CONCUR: ARONSON, Acting P.J., and IKOLA, J. Cal.App. 4 Dist.,2010. Hyatt v. Orange County Fire Authority Not Reported in Cal.Rptr.3d, 2010 WL 3280261 (Cal.App. 4 Dist.)

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Page 12 Not 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.))

END OF DOCUMENT

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