Facts

Plaintiff injured his back on Dec. 2, 2002 while employed as lead cargo agent for defendant Swissport. He filed a workers' compensation claim. On July 1, 2003, he was declared permanent and stationary. Workers' compensation counsel, who sought rehabilitation benefits in a letter dated Sept. 30, 2003, represented him.

On June 24, 2004, plaintiff's employment was terminated due to his inability to perform his job, and he was made eligible for workers' compensation rehabilitation benefits. Plaintiff filed employment discrimination charges with the California Department of Fair Employment & Housing alleging disability discrimination on July 6, 2004. On June 20, 2005, plaintiff filed a complaint alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in interactive process, wrongful termination in violation of public policy and breach of implied contract of employment to discharge only for just cause.

After extensive written discovery and several depositions, on March 3, 2006, plaintiff was offered an opportunity to apply for an office agent position. He did so and was employed by Swissport as an office agent in May 10, 2006. Plaintiff was unemployed from the date his employment as a lead cargo agent at Swissport was terminated on June 24, 2004 until May 10, 2006 when Swissport employed him as an office agent.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that defendant should have engaged in the interactive process at the latest by July 1, 2003, when plaintiff was declared permanent and stationary. Plaintiff should have been offered an office agent position at that time. Plaintiff was frequently required to violate the restrictions placed on him by his workers compensation physicians and frequently asked that he be given an office agent position so that he could avoid lifting. Despite his frequent requests, he was not offered an office agent position but was discharged instead.

DEFENDANT'S CONTENTIONS:
After plaintiff injured his back on Dec. 2, 2004, his job duties were modified and he worked with restricted duties without incident. His treating physicians reported that he was tolerating light duty well, and was working within the restrictions imposed on him. During this time, plaintiff's direct supervisor, his manager and the office manager in his building all encouraged him to apply for an office agent position, but plaintiff declined due to his poor keyboard skills.

During March 2004, plaintiff's building manager advised defendant's human resources manager that plaintiff was regularly violating his work restrictions. A meeting was held with plaintiff at that time, and plaintiff was given the option of following his work restrictions, applying for an office agent position or being discharged and obtaining workers compensation vocational rehabilitation benefits. Plaintiff failed to respond when asked what he wanted to do, and returned to his position as lead cargo agent and continued to violate his work restrictions.

In June 2004, another meeting was held with him about his continuing refusal to abide by his work restrictions. He was again told that he could apply for an office agent position. He again did not respond so his employment was terminated due to his inability to do his job. He was made eligible for workers' compensation rehabilitation benefits which he did subsequently collect, and was retrained to work as a computer repair person.

Settlement Discussions

There was an unsuccessful meditation on March 27, 2006 with Jeffrey P. Palmer, Esq. of ADR Services. There was a subsequent unsuccessful MSC with Judge Dunn. There were various offers and demands but plaintiff's last demand was for $850,000 and defendant's last offer was for $70,000.

Damages

Plaintiff sought economic damages of approximately $150,000 for lost wages and benefits and $300,000 to $600,000 for emotional distress and sought an undetermined amount of punitive damages. Plaintiff contended that he did apply for several jobs but produced no applications or resumes. He claimed that he was too depressed to look for jobs. Plaintiff claimed continuing emotional distress but failed to see any health care providers other than workers compensation physicians who were treating his back injury. Defendant contended that plaintiff suffered no damages whatsoever. Plaintiff did not submit any documentary evidence that he had applied for any other position. Defendant's employability expert testified that plaintiff was very employable both in the air cargo industry and as a computer repair person. Plaintiff's own admissions were that he had applied for a very small number of positions. His alleged emotional distress damages were not supported by any documents from any health care provider even though he had health insurance through his wife, and he could have been treated without any cost to him for depression through the workers' compensation system.

Result

The plaintiff was awarded $20,000 in economic damages for lost wages on failure to engage in interactive process, 9-3 on liability and 9-3 on damages. Defense verdicts on wrongful termination, disability discrimination, failure to accommodate, lack of clear and convincing evidence of fraud and malice or oppression Nonsuit granted on cause of action for breach of implied contract of employment to terminate only for good cause. JNOV granted on Aug. 20, 2007 because failure to timely engage in interactive process was not proximate cause of economic damages for lost wages where jury found that there was no wrongful termination, no disability discrimination, and no failure to accommodate. Judgment for defendant has been entered and a cost bill has been approved of approximately $10,000. The plaintiff filed a motion for attorney fees in the amount of $847,200 under the catalyst theory for getting plaintiff reinstated as the result of his complaint. This motion was denied on Oct. 4, 2007 on the ground that there was ample evidence that plaintiff had rejected the office agent position as a reasonable accommodation on several occasions before he was discharged. The plaintiff’s motion for a new trial was denied on Nov. 8, 2007.

Other Information

FILING DATE: June 20, 2005.

Deliberation

8 hours

Poll

9-3 (liability), 9-3 (damages), 10-2 (for defense on wrongful termination), 10-2 (for defense on disability discrimination) 10-2 (for defense on failure to accommodate), 11-1 (for defense on lack of clear and convincing evidence of fraud, malice or oppression)

Length

10 days