Court of Appeal Highlights Need to Exhaust All Possible Avenues of Reasonable Accommodation During The Interactive Process of Reviewing an Employee’s Disability

September 18, 2008
Once again, employers are reminded that they need to engage in the interactive process in an adequate manner in order to determine if a reasonable accommodation exists for an employee with a disability. In a recent decision, the California Court of Appeal in San Francisco overturned a summary judgment granted in favor of the Neiman Marcus clothing store regarding a former employee’s claim of disability and national origin discrimination. The Court held that triable issues of fact existed as to whether Neiman Marcus had discriminated against a clothes fitter on the basis of her disability and because of her Iranian/Middle Eastern origins. Forough Nadaf-Rahrov v. Neiman Marcus Group, Inc., (Case No. A114016, Sept. 10, 2008).

This case establishes that employers need to be extremely careful to exhaust all possible avenues of reasonable accommodation, including a review of other job positions available, in determining if an employee with a disability can be accommodated in the workplace.

Factual Background.

Nadaf-Rahrov had worked for Neiman Marcus as a clothes fitter since 1985, first in Dallas and later in San Francisco. After experiencing recurrent problems with back and joint pain, her physician informed Neiman that she needed various accommodations including time off from work and a shortened work week. Neiman satisfied these needs. Sometime later the same physician advised the company that Nadaf-Rahrov had carpal tunnel syndrome in both hands and osteoarthritis in her fingers. In November 2003 she requested family and medical leave of absence (FMLA) for one month. The doctor answered

yesIs the employee unable to perform work of any kind?
The FMLA leave was extended and the doctor indicated that Nadaf-Rahrov was unable to return to work. After approximately 10 weeks of leave, Nadaf-Rahrov informed Neiman that she could not return to her clothes fitter job due to her disability and she asked to be assigned to another job at the company. Her doctor wrote the company a letter confirming her disability and recommending that she be reassigned to a position that would not involve bending, standing, or kneeling.

These letters from the employee and her physician led the company’s San Francisco Human Resources Manager to begin an extended dialogue with Nadaf-Rahrov regarding her qualifications, work restrictions, and available positions at the company. Nadaf-Rahrov led the HR Manager to believe she was completely prohibited from performing work of any kind. The HR Manager told Nadaf-Rahrov that she would be "happy to assist her in exploring other opportunities as soon as her restrictions were modified to allow her to perform some work in some capacity, as without a release there was no point in discussing available positions because she was not qualified for anything." Nadaf-Rahrov acknowledged in deposition that she had been told that she should call when she was released to return to work so that HR could look for other jobs for her in the store. Nadaf-Rahrov acknowledged that she had agreed to do so.

When Nadaf-Rahrov’s 12 weeks of FMLA expired, she sent the company a letter advising that she was still under her physician’s care and "I need to still be under their care for a little while longer before I can return to work... I will be looking forward to contact you as soon as my physician let me know I can release from his care."

The company continually extended her leave into mid-August 2004 (it had begun the prior November and her FMLA leave expired in February 2004). Her physician issued a number of letters extending the amount of time she needed to be on leave, the last of which indicated "I believe she may be able to return to work on 8/16/04 but not in her previous position." The company terminated Nadaf-Rahrov in mid-July 2004. The HR Director indicated that the reason for Nadaf-Rahrov’s termination was the fact that the company did not have a release from her doctor to perform work of any kind, and even with a release it was concluded that she was not qualified for any open available position.

After her termination, Nadaf-Rahrov sued Neiman for unlawful employment discrimination based on disability, national origin and ethnicity in violation of the California Fair Employment and Housing Act (FEHA). She also sued for retaliation in violation of FEHA and wrongful termination in violation of public policy. The Superior Court granted summary judgment in favor of Neiman, finding that Nadaf-Rahrov could not prevail on her claims for disability discrimination, failure to accommodate and failure to engage in an interactive process because the undisputed facts established she was not able to perform the essential functions of her clothes fitter position or any other available position at the store. The Superior Court also held that Neiman had reasonably accommodated her by providing six months of leave beyond the requirements of FMLA and that the company was not required to wait indefinitely for her medical condition to improve to the point where she could perform an available job. Nadaf-Rahrov appealed the Superior Court’s decision to grant summary judgment

The Court of Appeal Held that a Triable Question of Fact Exists as to Whether Neiman Marcus Properly Engaged in the Interactive Process to Determine if a Reasonable Accommodation Existed for Nadaf-Rahrov.

The Court of Appeal reversed in part the Superior Court’s summary judgment ruling and held that triable issues of fact existed on a number of Nadaf-Rahrov’s claims, including her disability and national origin discrimination claims. However, the Court’s reasoning in ruling on her disability discrimination claims could have a precedential effect on the application of disability discrimination laws under the California Fair Employment and Housing Act (FEHA), and therefore is discussed in further detail below.

First, the Court found that a triable issue of fact existed as to whether the employee was unable to perform "work of any kind" due to her disability. The company argued that Nadaf-Rahrov’s physician had answered "yes" to the question whether she was "unable to perform work of any kind." The Court found one triable issue of fact from a statement submitted by the physician indicating that he was only referring to the essential functions of her job as a clothes fitter. The physician stated that he had encouraged his patient to seek other work at Neiman that did not have the strenuous physical requirements of a fitter and that he had encouraged her to seek a job that would not require bending, standing or kneeling. The Court overturned the summary judgment, finding that "a reasonable fact finder could find that the Certification of Health Provider included overstatements and that the 2004 medical notes indicated she could not work as a fitter but might be able to work in other positions if it did not involve more than incidental kneeling and standing." The appellate court declared it was an abuse of discretion for the trial judge to have discounted the physician’s declaration as containing only conclusions based on inadequate foundation and speculation.

The Court also overlooked Nadaf-Rahrov’s own testimony that, as of August 2005, one year after her termination, she was still so severely physically disabled that she was unable to perform most ordinary household chores or activities of daily living. She had pain in her knee and low back that went through her spine to her shoulders and neck on a daily basis. The pain was constant and increased with physical activity. She had difficulty sleeping because her hands became numb at night and she had to get up and move them around. She could not hold the phone for very long and had a hard time having even short phone calls. Walking for five or ten minutes caused Nadaf-Rahrov hip and low back pain. She had not worked for anyone since November 2003 and had not even looked for work until July 2005, a month before her testimony, when she began to feel better. Her doctors continued to advise her that, as long as she felt pain, she should not bend, stoop, lift, stand for too long or use her knees.

The Court discounted this testimony, stating that "although these physical restrictions are substantial, they did not self-evidently prevent Nadaf-Rahrov from performing any work whatsoever with or without accommodation." The Court held that a reasonable fact finder could conclude that she was able to perform desk work with accommodation notwithstanding these medical problems. Nadaf-Rahrov produced evidence that a significant number of vacancies had existed at the San Francisco store including some that might have been appropriate for a limited time period until a position became available that she could perform on a permanent basis. The Court also concluded that Nadaf-Rahrov had raised a triable issue of fact that she was unlawfully discharged because of her disability as Neiman could have provided but did not provide her with a reasonable accommodation through reassignment to a vacant position that would have allowed her to continue working with the company.

Also, the Court overturned the summary judgment ruling on the question of whether Neiman had failed to make reasonable accommodation to her disability and to engage in the interactive dialogue process. The Court noted that an employer is liable for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job. However, the Court concluded that a triable issue of fact existed as to whether Nadaf-Rahrov was able to perform the essential functions of some available vacant position at Neiman with or without accommodation. Therefore, there was a triable issue as to whether Neiman had committed an independent violation of FEHA by failing to afford her the reasonable accommodation. Further, the Court held that a triable issue of fact existed on whether the company had engaged in the requisite interactive dialogue with Nadaf-Rahrov designed to help find a reasonable accommodation. The Court held that the HR Manager’s insistence on receiving a medical release allowing the employee to perform some kind of work before discussing vacant openings was unreasonable. The Court in essence held that the company was obligated to provide Nadaf-Rahrov (and her physician) information about available vacancies so that the physician could review them and opine as to whether she could perform any one or more of them without accommodation. The company’s insistence on receiving the release before even listing available vacancies was improper.

Conclusion - Employers Need to Engage in the Interactive Process Properly and Exhaust All Possible Reasonable Accommodations to Determine if an Accommodation Exists for a Disabled Employee.

The Court’s decision in this case proves once again that no good deed goes unpunished. Neiman Marcus had gone a long way in an effort to assist Nadaf-Rahrov and to find a reasonable accommodation for her. It had extended her leave of absence for six months beyond the 12 weeks guaranteed by FMLA, had communicated with her regularly and frequently in an effort to keep tabs on her condition and explore alternatives whereby she could return to work in some capacity. Nonetheless, the Court held that Neiman Marcus had not gone far enough. Perhaps the most significant "error" made by the company, in the Court’s eyes, was Neiman’s requirement that the employee must first be released by her medical care provider with restrictions before the company would review available openings and allow an evaluation as to whether she could fill any one or more of the vacancies with or without accommodation. The Court held that the company was obligated to provide a listing of all vacancies prior to the receipt of a release so that her physician could determine whether she could perform any of those positions with or without accommodation.

Whether Neiman Marcus will ask the California Supreme Court to review this decision is unknown. Any petition for hearing to the Supreme Court is not due until October 20, 2008. It must be kept in mind that the Court’s decision only overturned a summary judgment motion. Neiman Marcus could still prevail at trial. A summary judgment only determines whether there are triable issues of fact. The Superior Court held that there were none; the Court of Appeal disagreed.

Nonetheless, the main lesson of this case is that all situations involving employees with health problems must be taken seriously and dealt with very carefully. Employers should work with disabled employees to exhaust all possible reasonable accommodations for the employee, including a review of current job openings that the employee qualifies for. Because the Court placed a significant emphasis on allowing an employee’s medical care provider the ability to review job descriptions of available positions to determine if an accommodation exists, employers should work closely with employees and medical care providers accordingly in reviewing possible accommodations.

This article was written by Jeffrey Freedman, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Freedman is a Partner in the Los Angeles office and can be reached at (310) 981-2000 or For more information regarding the discussion above or on our firm please visit our website at, or contact one of our offices below.

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