City skirts suit through return-to-work efforts, accommodation

An employer does not engage in illegal discrimination when it makes reasonable efforts to find an employee an alternative position because his current position endangers his health.

Case name: Zamudio v. City of Oakland, No. 09-16304 (9th Cir. 05/17/10, unpublished).

Ruling: In an unpublished decision, the 9th U.S. Circuit Court of Appeals upheld the dismissal of an employee's state law disability discrimination and workers' compensation retaliation case against his employer.

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What it means: An employer does not engage in illegal discrimination when it makes reasonable efforts to find an employee an alternative position because his current position endangers his health. Further, its delay in returning the employee to his former position is not evidence of retaliation where the delay is attributable to waiting for confirmation that he was medically cleared to return to work.

Summary: Heavy lifting, bending and stooping were essential functions of a gardening crew leader's position. The evidence indicated that because of his impairments the employee could not perform those functions "in a manner that would not endanger his own health." He repeatedly reinjured himself even though the city provided him with a helper. In May 2005, the city suspended his employment after he received a 50-pound lifting restriction but returned him to the position three years later when he received a full medical release. The 9th Circuit dismissed the suit, finding that that there were no genuine issues of material fact regarding the city's accommodation of the employee's disability.

The court noted that the city provided the employee with the only accommodation he requested -- the helper, made reasonable efforts to find an alternative position, and eventually returned him to his position when he was cleared to return.

The court also rejected the employee's workers' compensation retaliation claim. He argued that the city's delay in returning him to his position was evidence of retaliation. The court pointed out that the city returned him to work shortly after he received a full medical release. "There is no evidence that the city used the absence of a release as a pretext to keep him out of his job," the court said. Because there was no evidence of a casual connection between the employee's protected workers' compensation activities and the timing of his return to work, the city was entitled to summary judgment.

Read more at the WorkersComp Forum homepage.

August 2, 2010

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