Filed 5/3/18




                             CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                      DIVISION THREE


 MARISA HERNANDEZ,

      Plaintiff and Respondent,                        G054563

          v.                                           (Super. Ct. No. 30-2015-00773691)

 RANCHO SANTIAGO COMMUNITY                             OPINION
 COLLEGE DISTRICT,

      Defendant and Appellant.



                 Appeal from a judgment of the Superior Court of Orange County, Kim
Garlin Dunning, Judge. Affirmed.
                 Declues, Burkett & Thompson, Jeffrey P. Thompson and Steven J. Lowery
for Defendant and Appellant.
                 Law Offices of Robert S. Scuderi and Robert S. Scuderi for Plaintiff and
Respondent.
                                  *            *             *
              Plaintiff Marisa Hernandez worked for defendant Rancho Santiago
Community College District on and off for a number of years without any complaints
about her performance. In 2013, she was hired as an administrative assistant. During her
one-year probationary period, her performance was to be evaluated at three months,
seven months, and 11 months. At the completion of 12 months of probation, she would
be considered a permanent employee. Eight months into her probationary period and
with the district’s consent, she went on a temporary disability leave to have surgery to
replace a knuckle on a finger she injured while working for the district prior to her most
recent hiring. She was scheduled to return to work on, or shortly after, the anniversary of
her hiring date. The district, however, terminated her while she was on the approved
leave, because her performance had not been reviewed.
              Hernandez sued the district under the California Fair Employment and
                                       1
Housing Act (the FEHA) (Gov. Code, § 12940, subds. (m), (n)), contending it failed to
make reasonable accommodation for her medical condition and failed to engage in an
interactive process. At the conclusion of the court trial, the court found in Hernandez’s
favor and awarded her $723,746 in damages. The trial court found the district could have
accommodated her by extending her probationary period, by deducting the four months
she was on disability leave from her probationary period, or by adding the time away
from work to the probationary period, and, contrary to the district’s position, the district
would not have been required to make Hernandez a permanent employee on the
anniversary of her hiring. The district appeals, contending it had to terminate
Hernandez’s probation and employment because if it did not, she would have become a
permanent employee without having had her performance evaluated. We affirm the
judgment.


              1
                All further statutory references are to the Government Code, unless
otherwise indicated.

                                              2
                                               I
                                                   2
                                           FACTS
A. Evidence Admitted at Trial
              Hernandez’s 2013 hiring was the third time she worked for the district.
During her second stint with the district, she was injured at work on September 4, 2012,
when her right ankle became entangled in cords underneath her desk. Hernandez fell,
hitting her shoulder, her right knee, and left hand against a filing cabinet.
              Hernandez was to be on probation for a year with the latest hiring.
Reviews were due at three, seven, and 11 months. Her job performance was not
evaluated after three months or after seven months. When she did not receive her review
after three months, she called the vice-president of student affairs, who had stated she and
Dean Bryant would take care of all human resources matters. No one ever got back to
Hernandez about that review. She called again when it was time for her seven-month
review. Hernandez said she was “freaked out” because she had not heard from anyone
about her reviews and she wanted to know how she was doing in her job. No one ever
told Hernandez there was any issue with her performance.
              The injuries Hernandez suffered in 2012 all healed, except for the injury to
one of her fingers. That finger had been broken, but it had not been diagnosed at the time
of the injury. A knuckle had been “completely destroyed,” causing her “considerable
pain.” Her doctor recommended surgery. On October 17, 2013, after she had already
been working as a permanent administrative assistant for more than six months,
Hernandez spoke with Donald Maus, the risk manager for the district, about her doctor’s
recommendation. She said Maus sounded angry and, because she started to feel
intimidated by Maus, Hernandez asked him if she should not get the surgery. He did not
advise against surgery. She asked if having the surgery was going to cost the district a lot


              2
                  The facts in this matter are essentially undisputed.

                                               3
of money, and he said the schools rates would go up. Hernandez told Maus she was on
probation and concerned about her job. He told her not to worry, “because you cannot be
fired on a workers’ comp case.” Hernandez said that had he told her the surgery would
affect her probation, she would have put off the surgery, because the job was important to
her.
              Hernandez’s doctor estimated she would be out of work for three to four
months. The district agreed to Hernandez taking time off for the surgery. Hernandez had
surgery replacing her damaged knuckle with bone from a cadaver on November 18, 2014,
slightly more than eight months after she started working as a permanent administrative
assistant.
              In late February 2014, Hernandez received a letter from Judyanne Chitlik,
who works in the district’s human resources department, terminating her employment
with the district. Hernandez thought the district had made a mistake and sent the letter to
the wrong person. She had no prior notice her job was in jeopardy. Hernandez called the
telephone number in the letter and spoke to Chitlik’s secretary who seemed nervous after
hearing Hernandez’s name and, after putting her on hold for a long time, the secretary
said Chitlik was not available to talk to Hernandez. Hernandez asked when Chitlik
would be available and the secretary said it would not be that week. The secretary
refused to make an appointment for Hernandez. Hernandez then gave the secretary her
telephone number, requesting Chitlik to call her back.
              Chitlik returned Hernandez’s telephone call a few hours later. In an angry
voice, Chitlik told Hernandez, “You should [have] known better than to take a personal
leave while you’re on probation.” Hernandez said she was on an approved workers
compensation leave, not a personal leave, but Chitlik said it was a personal leave and that
Hernandez was terminated from probation. Had Chitlik told Hernandez she could
reapply for the position, she would have. Hernandez’s belief, however, was that she
could not reapply because her employment had been terminated.

                                             4
B. The Trial Court’s Decision
              In an 11-page statement of decision, the trial court found Hernandez was a
probationary employee who had a temporary total disability, and consequently, the
district “had the option to deduct the time she was not able to work from her one-year
probationary period or extend the probationary period by the number of days [Hernandez]
was off work.” The court found either would have been a reasonable accommodation
and would have given her a 12-month probation. The trial court rejected the district’s
contention that it could not do either because it was required to make Hernandez a
permanent employee on the anniversary of her hiring, and stated it would not have been
an undue hardship to accommodate Hernandez by extending her probationary period.
              The trial court also found the district’s own attorney had advised that to
terminate Hernandez might be considered disability discrimination, although the lawyer
concluded the district could lawfully terminate her. Lastly, the trial court found the
district failed to accommodate Hernandez’s temporary total disability and failed to
engage in any interactive process with her and instead, summarily terminated her
employment.


                                             II
                                      DISCUSSION
A. Validity of the Appeal
              The district filed its appeal in this matter on January 27, 2017, purporting to
appeal from a judgment after trial and the statement of decision dated December 1, 2016.
The judgment after trial was not entered and served until January 30, 2017. Hernandez
contends “[t]he record fails to show any appeal has been filed to the judgment entered on
January 30, 2017.” She is technically correct.
              “The general rule is that a statement or memorandum of decision is not
appealable. [Citations.] The rule’s practical justification is that courts typically embody

                                             5
their final rulings not in statements of decision but in orders or judgments.” (Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) “‘Reviewing courts have
discretion to treat statements of decision as appealable . . . .’” (Pangilinan v. Palisoc
(2014) 227 Cal.App.4th 765, 769.) We choose to treat the notice of appeal as effective
because the December 1, 2016 statement of decision was the result of the district’s
objections to the trial court’s November 4, 2016 statement of decision, the statement of
decision was signed, filed, and resolved all of Hernandez’s causes of action. We
therefore treat the district’s appeal as timely. (Ibid.)
              Hernandez also contends the district failed to present an adequate record on
appeal to decide the present appeal because some of the exhibits and transcripts of
testimony are not included in the record. However, there are only two issues argued in
this appeal: 1) whether the district failed to provide a reasonable accommodation to
Hernandez in violation of section 12940, subdivision (m), of the FEHA; and 2) whether
the district failed to engage in an interactive process with Hernandez in violation of
section 12940, subdivision (n), of the FEHA. The record on appeal is sufficient for this
court to review these issues. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402.)


B. Standard of Review
              Under the substantial evidence test, we “presume that the trial court made
all factual findings necessary to support the judgment so long as substantial evidence
supports those findings.” (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121
Cal.App.4th 452, 462.) Under this standard, we determine “‘“whether there is any
substantial evidence, contradicted or uncontradicted,” to support the findings below.
[Citation.] We must therefore view the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable inference and resolving all
conflicts in its favor in accordance with the standard of review . . . .’” (Escamilla v.
Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514.)

                                               6
              Questions of law are reviewed de novo. (Farm Raised Salmon Cases
(2008) 42 Cal.4th 1077, 1089, fn. 10.) “Questions of statutory interpretation, and the
applicability of a statutory standard to undisputed facts, present questions of law, which
we review de novo.” (Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 604.)


C. Analysis
              1. Section 12940, Subdivision (m)
              A person’s right to hold employment without discrimination based on a
physical disability is protected by the FEHA (§ 12900 et seq.). (Chavez v. City of Los
Angeles (2010) 47 Cal.4th 970, 984.) Section 12940 sets forth a number of unlawful
employment activities. Subdivision (m)(1) of section 12940 makes it unlawful “[f]or an
employer . . . to fail to make reasonable accommodation for the known physical or mental
disability of an . . . employee. Nothing in this subdivision or in paragraph (1) or (2) of
subdivision (a) shall be construed to require an accommodation that is demonstrated by
the employer or other covered entity to produce undue hardship, as defined in subdivision
(u) of Section 12926, to its operation.”
              There are three elements to a failure to accommodate action: “(1) the
plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual
(i.e., he or she can perform the essential functions of the position); and (3) the employer
failed to reasonably accommodate the plaintiff’s disability. [Citation.]” (Wilson v.
County of Orange (2009) 169 Cal.App.4th 1185, 1192.) The district does not dispute
Hernandez had a disability protected by the FEHA or that she is a qualified individual.
The disputed issue is whether the district failed to reasonably accommodate Hernandez’s
disability.
              The district argued giving Hernandez time off from work for her surgery
and recovery was a reasonable accommodation. It argues it had to terminate her
probation and employment when the anniversary of her hiring date approached because if

                                              7
it did not, she would have become a permanent employee on the anniversary of her hiring
                                                       3
under Education Code section 88013, subdivision (a), without the district having had an
opportunity to evaluate her performance. We disagree.
              Yes, the district accommodated Hernandez by giving her time off for her
surgery, but the accommodation can hardly be considered reasonable when it included
the consequence that she would lose her job if she took the time off to undergo surgery.
While “a finite leave can be a reasonable accommodation under FEHA, provided it is
likely at the end of the leave, the employee would be able to perform . . . her duties”
(Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226), a finite leave is not a
reasonable accommodation when the leave leads directly to termination of employment
because the employee’s performance could not be evaluated while she was on the leave.
We agree with the trial court that Education Code section 88013, subdivision (a), did not
require the district to either terminate Hernandez’s employment or make her a permanent
employee on the anniversary date of her hiring.
              This conclusion is borne out by reference to subdivision (n) of section
12940 (discussed infra). That subdivision requires an employer to engage in a good faith,
interactive process with the employee “to determine effective reasonable
accommodations.” (§ 12940, subd. (n), italics added.) An “accommodation” that leads
directly to termination of employment is not an effective accommodation and is not
reasonable under the FEHA.




              3
                  “The governing board of a community college district shall prescribe
written rules and regulations, governing the personnel management of the classified
service, which shall be printed and made available to employees in the classified service,
the public, and those concerned with the administration of this section, whereby these
employees are, except as provided in Section 72411, designated as permanent employees
of the district after serving a prescribed period of probation which shall not exceed one
year.” (Ed. Code, § 88013, subd. (a), italics added.)

                                             8
              Education Code section 88013, subdivision (a), states a probationary period
shall not exceed one year. The statute provides the employer with a year in which to
evaluate the employee’s performance. It does not state whether there are periods of time
that may be deducted from the year, such as when an employee has been injured on the
job and unable to work for a period of time while on probation.
              Both parties cite Bell v. City of Torrance (1990) 226 Cal.App.3d 189 (Bell).
Bell sued the City of Torrance because it terminated her employment without first
                               4
providing her a Skelly hearing. The City contended Bell was still on probation at the
time it terminated her employment and was not entitled to such a hearing. (Id. at p. 193.)
              Bell began work for the City of Torrance on August 11, 1986. (Bell, supra,
226 Cal.App.3d at p. 191.) The memorandum of understanding (MOU) between the city
and the employees’ association provided for a one-year probationary period. (Id. at
p. 192.) In April 1987, Bell was granted an extended unpaid leave for medical reasons.
She returned to work in June 1987, and was told her probationary period was extended to
October 27, 1987. This extension accounted for the 78-day period she was away from
the job on leave. (Ibid.) On October 23, 1987, the City informed Bell her employment
was being terminated for failure to satisfactorily complete her probationary period.
(Ibid.)
              Bell contended she was a permanent employee after the anniversary of her
hiring and the City did not have authority to extend her probationary period. (Bell, supra,
226 Cal.App.3d at p. 193.) The MOU between the City and the employees association
contained a provision deducting unpaid leaves of absence of 10 days or more from an
employee’s “‘total service,’” although such leaves would not constitute an interruption of
“‘continuity of service.’” (Id. at p. 194, original capitalization omitted.) The appellate

              4
               Skelly v. State Personnel Board (1975) 15 Cal.3d 194, explains the
procedures by which a permanent public employee may be dismissed or otherwise
disciplined.

                                              9
court concluded the City properly extended Bell’s probationary period and when the City
terminated her employment, Bell was still within her probationary period. (Id. at p. 195.)
             In the present matter, subdivision (a) of Education Code section 88013
states a probationary period is not to exceed one year. The collective bargaining
agreement in the present matter, like the MOU in Bell, provides that a leave of absence is
not considered a break in service. Unlike the MOU in Bell, the collective bargaining
                                                                                5
agreement does not speak to deducting leaves of absence from “‘total service.’” The
appellate court in Bell concluded that “viewing the provisions of the MOU as a whole,
and appreciating the purpose of probation, an interruption of a service caused by a leave
of absence longer that 10 days requires an extension of the probationary period.” (Bell,
supra, 226 Cal.App.3d at p. 193.)
             Section 12940, subdivision (m), requires an employer to make a reasonable
accommodation for a qualified employee’s disability. That section’s purpose is to permit
an individual with a disability to remain gainfully employed.
             Here, the district attempts to use Education Code section 88013,
subdivision (a)’s one-year probationary period—a statute enacted to shield employees
like Hernandez from serving an indefinite period of time under the “Sword of
Damocles”—as a sword against an employee who was away from work on a medical
leave for a work injury and unavailable to have her work performance evaluated during
that period of time. (See Wiles v. State Personnel Board (1942) 19 Cal.2d 344, 347-348
[probationary period provides employer a reasonable period of time to observe
employee’s job performance before the employee achieves permanent status].) We
conclude that when a probationary employee suffers a temporary total disability requiring
absence from work for an extended period of time, that period may be deducted from the

             5
                Total service appears to be basis for advancement within a pay range, the
accrual of vacation (Bell, supra, 226 Cal.App.3d at p. 194), and arguably retirement
calculations.

                                            10
employee’s probationary period. In this way, the employer receives the full 12-month
period of time in which to evaluate the employee’s performance (Ed. Code, § 88013,
subd. (a)), and the employee does not lose her job because she suffered a job injury
resulting in her temporary total disability (§ 12940, subd. (m)).
              Because we conclude the district could have deducted from Hernandez’s
probationary period the extended period of time she was away from work due to her
work-related injury, the district would not have incurred the purported undue hardship
(see § 12926, subd. (u)) of having to make her a permanent employee on the anniversary
of her hiring without benefit of having had her job performance evaluated. The trial court
did not err in concluding the district failed to reasonably accommodate Hernandez’s
temporary total disability.
              2. Section 12940, Subdivision (n)
              Hernandez’s second cause of action was for a violation of section 12940,
subdivision (n). The FEHA makes it unlawful “[f]or an employer . . . to fail to engage in
a timely, good faith, interactive process with the employee . . . to determine effective
reasonable accommodations, if any, in response to a request for reasonable
accommodation by an employee . . . with a known physical or mental disability or known
medical condition.” (§ 12940, subd. (n).)
              “The ‘interactive process’ required by the FEHA is an informal process
with the employee or the employee’s representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job effectively. [Citation.]
Ritualized discussions are not required.” (Wilson v. County of Orange, supra, 169
Cal.App.4th at p. 1195.)
              Under the circumstances we find in this record, where there is evidence
Hernandez was told she could not be fired for taking medical leave and she was thereafter
fired when she took the leave, we cannot conclude the interactive process was in good
faith. Later, when Hernandez attempted to interact with Chitlik, she was rebuffed. Thus,

                                             11
instead of sitting down with the employee and working out an effective accommodation,
the district slammed and locked the door. We agree with the trial court’s conclusion the
district also violated section 12940, subdivision (n).


                                             III
                                      DISPOSITION
              The judgment is affirmed. Hernandez is entitled to her costs on appeal.




                                                   MOORE, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.




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