Facts

Plaintiff Esther Cortes, a 48-year-old elementary school teacher, became disabled with serious knee problems and fibromyalgia after a fall in her classroom in 2003. After a long recuperation, she was released in June 2005 to return to work at a sedentary position. At that time and thereafter, many sedentary positions were or became available. However, Montebello Unified School District blocked her from obtaining any of these positions. Rather, her only option was to work in an elementary school classroom, a job she and her doctors said she could not do.

Plaintiff applied for approximately 26 sedentary positions and was allowed to interview for some of them. However, she was never selected. In each case, the district filled the position with someone not disabled, and even brought in people from outside the district to fill two of the spots. The plaintiff established that because of her tenure in the district, the multiple credentials she had obtained and the fact that she had a Masters degree, placed her at the top of the pay scale for teachers in the district. The plaintiff further established that by terminating her, the district could hire two new young teachers for the same pay that plaintiff would earn if she returned to work.

The defense called five people who had interviewed plaintiff for the sedentary positions. These individuals claimed they did not know plaintiff was disabled, even though plaintiff uses a cane to walk and has a pronounced limp. This testimony was further impeached by emails exchanged between the plaintiff and one of these interviewers, which contained discussion about plaintiff's disability.

Plaintiff has not worked for over two years, lost her health insurance, spent all of her savings and has had to refinance her home twice in order to survive.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that she was ready, willing and able to work at many sedentary positions, but that the district was using the ADA and FEHA as an excuse to prevent her from returning to work. The plaintiff further contended that the district failed to engage in the interactive process in good faith and that the district could have easily provided reasonable accommodation to her but intentionally chose not to do so. The plaintiff contended that the district had previously employed this practice to make it difficult if not impossible to re-employ disabled persons.

DEFENDANT'S CONTENTIONS:
The defendant claimed that it was Plaintiff who refused to engage in the interactive process and that they offered her a position to return as a second grade teacher.

Settlement Discussions

Defendant never made a settlement offer but did indicate they would only offer money and not a job. The plaintiff was willing to settle only if the defendant would allow her to return to work.

Specials in Evidence

$233,709 $1,095,000

Damages

The plaintiff suffered loss of income, loss of health insurance, aggravation of fibromyalgia, depression and anxiety.

Result

Plaintiff's verdict for $1,410,709 ($1,328,709 economic; $82,000 non-economic). The jury found the district failed to reasonably accommodate plaintiff's disability and failed to engage in the interactive process in good faith.

Other Information

POST-TRIAL MOTIONS: The plaintiff filed a motion to compel the district to re-employ plaintiff immediately so that the defendant could not purchase the right to discriminate. The plaintiff also filed motions for additur to increase the amount of the damage award and for attorney fees and costs. Results pending. EXPERT TESTIMONY: Dr. Robert Sniderman, Ph.D., an expert in vocational rehabilitation and the ADA, testified that plaintiff tried everything within her power to return to work and that she initiated all efforts to engage in the interactive process. Dr. Sniderman faulted the district for failing to reasonably accommodate the plaintiff and for failing to engage, in good faith, in the interactive process. He stated that American employers have a "dismal" record of allowing disabled workers to return to work.

Deliberation

three hours

Poll

9-3

Length

seven days