Why it matters

The U.S. Court of Appeals, Ninth Circuit affirmed a jury verdict in favor of a former employee who alleged that her employer failed to engage in the interactive process—even though jurors found the employer provided a reasonable accommodation. In her disability discrimination suit against Time Warner Cable, Katrina Perona alleged the company failed to engage in the interactive process with regard to her fibromyalgia. After a seven-day jury trial, Perona was awarded $160,000 in damages plus almost $1 million in attorneys’ fees. Time Warner appealed, but in an unpublished opinion, the federal appellate panel affirmed the verdict and the award of fees despite the employer’s argument that the verdict was fatally inconsistent. California law is clear that “an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action,” the court said, and not just a means to an end.

Detailed discussion

Katrina Perona worked as a customer care representative for less than one year for Time Warner Cable beginning in October 2012. Under the heading “Qualifications,” the employer described the position to include the ability to work “day, evening, weekend and split shifts.” Although there were no issues with Perona’s job performance, she struggled with fibromyalgia, making it difficult for her to work.

Her primary care physician placed her on a leave of absence in April 2013, which Time Warner approved. Her leave was extended and approved a total of 11 times from April through September 2013. During this time period, another physician opined that Perona could return to work as long as she worked no more than four hours per day in the morning. A human resources representative responded that the company would not accommodate this request “as the business cannot support it.”

In September 2013, human resources suggested that Perona resign and then reapply once her health improved. She refused and requested to extend her leave again through November. Time Warner declined to grant the extension and terminated her employment in October because “business conditions [could] no longer support [the] request” and “it appeared unlikely” that she would return to work in November.

Perona sued under California law, alleging disability discrimination, failure to engage in the interactive process and failure to accommodate her disability, among other claims. In 2016, the case went before a jury, which after a seven-day trial awarded Perona $160,000 on her claim for failure to engage in the interactive process. Judgment was entered in favor of Time Warner on the remaining claims.

Time Warner appealed. The jury verdict was inconsistent and should be set aside, the employer told the U.S. Court of Appeals, Ninth Circuit, because the jury found both that Time Warner did not fail to provide reasonable accommodation and that it failed to engage in the interactive process.

“But there is no fatal inconsistency,” the panel decided. “California law is clear that ‘an employer’s failure to properly engage in the process is separate from the failure to reasonably accommodate an employee’s disability and gives rise to an independent cause of action.’”

The duty to accommodate is a continuing one and is not exhausted by one effort, the court noted. While Time Warner originally provided an accommodation by granting Perona leave—and extending that leave—“the jury could, and reasonably did, find it did not do so later,” the court said, by failing to engage in the interactive process with the plaintiff when it became clear that some different accommodation would be necessary.

Time Warner tried a secondary line of argument that the verdict was contrary to the evidence, because it presented evidence that no part-time morning shifts or open positions were available for Perona, that she was not eligible for a morning shift and that she was responsible for the breakdown in the interactive process.

However, jurors “also heard evidence that Ms. Perona was amenable to at least attempting to work an afternoon shift, her medical expert would have considered authorizing such work, and that [human resources] did no research to see if there were any available accommodations the company could provide,” the court wrote. “The verdict is not contrary to the evidence.”

In addition to affirming the jury verdict, the panel upheld the award of $964,938 in attorneys’ fees.

To read the memorandum in Perona v. Time Warner Cable, Inc., click here.