Personal Injury Law

Firefighter From Sacramento Alleges Workplace Discrimination, Part 11 of 19

By Moseley Collins, Esq.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

Significantly-and fatally for the defendant's statute of limitations argument-the jury returned a verdict in favor of the plaintiff on his claim for failure to engage in a good faith interactive process and failure to accommodate-both of which were clearly based primarily on events that occurred within one-year of the June 10, 2005 DFEH filing. Moreover, the interactive process and failure to accommodate claims were so closely connected to the disability discrimination and retaliation claims as to be almost derivative of them. It was plaintiffs contention that the City's failure to accommodate him and failure to engage him in the interactive process was simply part of a retaliatory and discriminatory course of conduct that was designed to prevent him from returning to work. Indeed, the defendant's failure to accommodate plaintiff and failure to engage him in the interactive process had the effect of cementing the impact of the retaliatory and discriminatory application for disability retirement. Put another way, the result of the City's failure to accommodate Mr.Carter and failure to engage him in a good faith interactive process, was that the City persisted into the one-year statutory period with what the jury found was a discriminatory and retaliatory retirement application. A jury had every reason to conclude that these various acts of discrimination were sufficiently similar in kind to establish a continuing violation.

In summary, based on the chronology of events at trial, which is outlined in Section III, it is clear that a jury found that the defendant committed numerous unlawful acts within the limitations period, and that these acts were sufficiently similar in kind to the discriminatory and retaliatory acts that occurred prior to June 10, 2004 [particularly the initial fitness-for-duty referral (2/26/04) and the submission of a disability retirement application (4/26/04)] to constitute a continuing violation.

It should be pointed out that the California Supreme Court has interpreted this "sufficiently similar in kind" prong of the continuing violation test liberally, "recognizing ... that similar kinds of unlawful employer conduct, such as harassment or failures to reasonably accommodate, may take a number of different forms." See Richards, supra, at 823.

Full post as published by Sacramento Injury Lawyer Blog on September 11, 2009 (boomark / email).