Facts

On March 19, 2013, plaintiff Marisa Hernandez, 57, was hired as a permanent classified employee of the Rancho Santiago Community College District and began a probationary period of one year.

When plaintiff began the probationary period, she had been working on and off for six years. She passed an earlier probationary period for a different position and achieved permanent employee status, but was laid off for fiscal reasons in 2009. Her most recent stint as a temporary employee began on Aug. 10, 2010, and she worked continuously in that capacity until offered the permanent administrative secretary position, which again triggered a probationary period.

Plaintiff sustained an on-the-job trip and fall in September 2012, while she was working as a temporary employee. She received workers' compensation benefits and was placed on certain work restrictions for a period of time. In October 2013, more than halfway through the probation period, doctors discovered her injured finger had not healed properly. It required surgery involving the removal of a digit joint, the implanting of cadaver bone, and several months of off-work recovery. Plaintiff remained on the job until her surgery on Nov. 18, 2012, and was on workers' compensation leave from that date until her termination.

When defendant learned in February 2015, that plaintiff would not return to work until March 13, 2014, or later, she was terminated.

PLAINTIFF'S CONTENTIONS: As a probationary employee, plaintiff was supposed to be evaluated during the first year at three months, seven months and 11 months. Defendant did not perform the three-month evaluation because plaintiff's supervisor was on her own medical leave. Another supervisor eventually stepped in, but she had not been in that position for 90 days before plaintiff's seven-month evaluation, so that evaluation was not undertaken on time. Defendant would have conducted the seven-month evaluation a month later, but by then, plaintiff was recovering from surgery and on workers' compensation leave. Plaintiff was still on workers’ compensation leave on the eleventh month and an evaluation was not performed either.

Plaintiff claimed that defendant violated Government Code section 12940 (m) failure to accommodate a physical disability by terminating her approved medical leave of absence and firing plaintiff, and Government Code section 12940 (n) failing to provide an interactive process by refusing to meet and discuss any other accommodation that would avoid plaintiff's termination of employment.

DEFENDANT'S CONTENTIONS: Defendant claimed that per law, it could not extend plaintiff's probation. Defendant argued that if it did not fire plaintiff she would automatically have become a permanent employee at the end of 12 months, even though she only worked eight months and was not evaluated in her performance as a probationary employee.

Settlement Discussions

Plaintiff demanded $450,000. Defendant made a CCP 998 offer of $150,000.

Damages

$723,460 past and future loss of earnings and future pension benefits.

Result

The court found in favor of plaintiff and awarded her $723,460. The court found that although defendant was not required to provide plaintiff with a full 12-month probationary period, and could summarily terminate her before the anniversary, it could not terminate her for a reason in violation of the public policy, as expressed in Government Code section 12940 in such a statute.

Other Information

Plaintiff was awarded attorney fees for $220,567 and costs of $10,621.