In this case arising under California law, the plaintiff worked as a manger of a jewelry store in a mall.?? After 8 years of employment, the plaintiff was diagnosed with chronic arthritis. ?The plaintiff asked for a reduced schedule of 25 hours.?? The company wrote ?back ?that ?being? in ?the ?store ?40 hours a week was an essential function of the manager position.?? The plaintiff?s doctor wrote a note putting her on a four-week leave starting August 5, 2009. ?The company asked her to fax the note and plaintiff went to the jewelry store to fax the note because she didn?t own a fax machine.
As it turned out a corporate vice-president was there and insisted the plaintiff perform numerous job ?tasks ?even ?though ?she? was ?on ?leave ?and unable to perform the tasks. ?The vice-president threatened? her job? for ?not? complying? with? his requests.? ?The plaintiff then sent in a written complaint ?to ?HR ?about ?being? asked ?to ?work while she was on disability leave.?? Her doctor extended her leave to January 5, 2010.? ?The company terminated her employment on October 15, 2009, because of her projected five-month absence.
The plaintiff filed suit.? ?In her deposition in November 2010, the plaintiff testified she had not ?worked ?since ?October? 2009, ?had ?received state and company disability benefits from September 2009 until September 2010 and Social Security Disability thereafter.?? ?The plaintiff brought ?a ?claim ?for ?disability? discrimination under California law but not a failure to make reasonable accommodation claim.? ?She also brought retaliation and harassment claims.?? The district court granted the employer?s motion for summary judgment and the Ninth Circuit affirmed.
Although California law uses slightly different terminology? than ?the ?ADA, ?a ?plaintiff ?must prove she can perform the essential functions of her position with or without accommodation. The plaintiff agreed all of her job duties could be performed only while physically present at the store. ?The panel held the plaintiff?s inability to perform the essential functions of her job since August 2009 and inability to perform any work since? October? 2009 ?meant ?no ?accommodation was possible.
The?? court? ?affirmed? ?the?? retaliation? ?dismissal because there was no evidence that the employer dismissed ?her ?for ?any? reason ?other ?than ?her inability to do her job.? ?The court held that the vice-president?s conduct on August 5 did not constitute disability harassment because the comments related to her job duties and were not pervasive.?? California law does not consider job related conduct to be harassment.
Lawler v. Montblanc North America LLC, 704 F.3d 1235 (9th Cir. 1/11/13) (Duffy (SDNY), Gould, M. Smith).