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Employee Not Terminated is Not Eligible for Reinstatement


By Max Nuyen

This case examines the question of what a “dismissal” is not – in regards to ending an employee’s relationship with the company.   This case does not in fact define what a “dismissal” is, however.  Instead, it sheds light on the dismissal-issue by finding that a certain factual situation would not be considered a “dismissal.”  A “dismissal” seems like a common sense idea.  Employers use this term all the time.  However, they rarely defined “dismissal”.  Nonetheless, the question of whether or not an employee has been “dismissed” (or terminated) is a critical one because in the area of employment law, employer liability can attach upon a termination, or certain remedies become available to the “dismissed” employee.

Out of work, but not dismissed
This case involves an employee who worked for a county government in California.  For 14 years, she worked as  a juvenile correctional officer, until she injured her back pushing a linen cart.  She then went on a two-month medical leave, but returned  to work for several more months before  sustaining an aggravating injury. She took another two months off for medical leave.

After the employee’s initial back injury in 2004, sheworked without restrictions.  From March, 2005 through May, 2006, she was placed on a restriction of working no more than 40 hours per week.  In May, 2006, the county/employer notified the employee it could no longer accommodate her work restrictions, and consequently,  did not clear her to work.  The following month, the employee requested an accommodation meeting – the “interactive process” – required of employers under the Americans with Disabilities Act (ADA).  After the meeting took place,  the county accommodated the employee by assigning her to performing clerical duties only.

In the same year, the employee was examined by an independent medical examiner, who determined  she was permanently restricted from certain duties.  Namely, she was precluded from heavy lifting and repeated bending or stooping.  In January, 2007, the county advised the employee  it could not accommodate her permanent work restrictions within her position as a correctional officer.  The county instructed her not return to work until a final decision was made regarding accommodation of her permanent work restrictions.

Thereafter, the county and the employee held periodic ADA accommodation meetings.  At least three interactive meetings took place.  On two separate occasions, the county offered to place her in a clerical position that paid less than her normal rate.   The employee declined on both occasions, and stated  she would not be willing to accept any position with lesser benefits than what she held as a juvenile correctional officer.  The county also offered vocational training for other positions.

After the employee declined accommodation in January, 2007,  she did not work  or receive a salary .  However, the county never took steps to dismiss or terminate her.  She was simply on disability leave for the next three+ years.  The employee also did not seek unemployment benefits or asked for clarification as to her employment status.

In April, 2010, the employee sued the county.  She alleged causes of action for disability discrimination, failure to provide a reasonable accommodation and failure to engage in the interactive process.  She also sought reinstatement under a California statute that applied to government employees.

No dismissal, no reinstatement
The legal question the court focused on was whether or not the employee had been “dismissed.”  Indeed, she would have been able to collect significant damages if she could establish that she had been dismissed – under a disability discrimination theory.  Not only would the employee be eligible for reinstatement, but the county would have been liable for the payment of her wages that accrued during the three+ year period of her dismissal.

The employee argued  the county’s action of informing her that it could not accommodate her work restrictions, and then removing her from the regular payroll constituted the functional equivalent of a dismissal.  However, the appellate court reviewing the case disagreed with the employee.  It determined none of the county’s actions amounted to a dismissal.  The county’s inability to accommodate her was not a “dismissal.”  The fact that the employee was not paid for  years also did not support the employee’s argument that she was “dismissed.”  The court noted that the absence of a salary did not necessarily connote a dismissal.

The court found the following facts to be important: (1) the county never formally dismissed or terminated the employee; (2) the employee remained on disability leave; (3) the employee did not dispute  she was physically unable to perform her job as a juvenile correctional officer; (4) the county continued to have interactive meetings with the employee; (5) the county offered to place the employee in different positions; and (6) the employee never applied for unemployment benefits or looked for another job.

The bottom line is that even though the employee did not work or get paid for years, she was not entitled to reinstatement because she had not been “dismissed.”

Lessons learned
This case, at least in California, seems to have opened a few doors for employers in their defense against employment lawsuits.  It should not automatically assume an employee has suffered an adverse employment action such as a dismissal or termination.  Therefore, it should be a threshold question in every case to ask if whether in fact the employee has been dismissed.  An employee who cannot establish that he or she has been dismissed will be precluded from certain claims or damages.

Read the case here.

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