Store Must Pay $200K for Failure to Accommodate Worker

A California appeals court has upheld a $200,000 jury verdict in favor of an Albertsons grocery clerk who sued the company because she urinated and menstruated on herself when her supervisor failed to accommodate her disability.

The Court of Appeal's 1st District rejected Albertsons' argument that its failure to accommodate was "trivial" because it was only one incident in the context of a much longer period of successful accommodation.

"As demonstrated in [plaintiff] A.M.'s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated," the panel said.

The court cited the plaintiff's background and severe reaction to the incident when reaching its conclusion concerning an employer's duty under the Fair Employment and Housing Act to reasonably accommodate disabled workers.

According to the court opinion, A.M. is a refugee from civil war in El Salvador who came to the United States in 1981. She worked for Albertsons in various positions and eventually becoming a checker.

After she underwent treatment for cancer of the tonsils and larynx in 2004, A.M. found that one of the side-effects of the treatment was constant thirst. Because of the large amounts of water she drank, she had to urinate frequently, and Albertsons agreed to accommodate her by arranging relief workers for her when she needed to leave her checkstand, the opinion said.

This arrangement worked until February 2005, when acting manager Kellie Sampson told A.M. that she was too busy to relieve her. No one had told Sampson about A.M.'s disability or the bathroom arrangement.

After pleading with Sampson, A.M. could not control herself and urinated while standing at her checkstand. Because she was also menstruating, A.M. became wet with blood and urine and left the store.

A.M. said she became depressed, took frequent showers and shaved off her body hair in an effort to get rid of what she said was a continuing smell. After expressing suicidal thoughts, she was committed to a psychiatric hospital for several days, the opinion said. After entering therapy, she was diagnosed with post-traumatic stress disorder.

In September 2006 A.M. sued Albertsons in the Marin County Superior Court, alleging violations of FEHA.

The trial judge denied Albertsons' motion for nonsuit, and a jury found that the February 2005 incident was a substantial factor in harming A.M. It awarded her a total of $200,000 in past lost wages, future medical expenses and past emotional distress.

Albertsons appealed, and the court affirmed.

Under FEHA, an employer that fails to reasonably accommodate an employee's known physical disability engages in an unlawful employment practice, the panel established first.

Once a reasonable accommodation has been granted, the employer has a duty to provide that accommodation, it stressed.

Albertsons had argued that the February 2005 failure to accommodate was "trivial," that A.M. was at fault for not continuing the interactive process by notifying Sampson of her disability and that management had granted her an accommodation.

The appeals court rejected that reasoning, emphasizing that a failure to accommodate and a failure to engage in the interactive process are two different FEHA violations.

"To graft an interactive process intended to apply to the determination of a reasonable accommodation onto a situation in which an employer failed to provide a reasonable, agreed-upon accommodation is contrary to the apparent intent of the FEHA and would not support the public policies behind that provision," the court said.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@ThomsonReuters.com.

A.M. is represented by Leslie Levy and Jean Hyams of Boxer & Gerson LLP in Oakland, Calif.Counsel for Albertsons is Steven Blackburn of Epstein Becker & Green in San Francisco.