Hancock v. Time Warner Cable Servs., LLC

PATRICIA HANCOCK, Plaintiff and Respondent, v. TIME WARNER CABLE SERVICES, LLC, et al., Defendants and Appellants.

B266532

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

December 20, 2016

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC482161)

APPEAL from a judgment of the Superior Court of Los Angeles County. Raphael A. Ongkeko, Judge. Reversed and remanded with directions.

Hill, Farrer & Burrill, James A. Bowles, Casey L. Morris and Elissa L. Gysi for Defendants and Appellants.

Kokozian Law Firm, Bruce Kokozian and Jill P. McDonell for Plaintiff and Respondent.

____________________ Defendant Time Warner Cable appeals from the jury's verdict that it failed to engage in the process of accommodating the disability of plaintiff Patricia Hancock after she was injured on the job. We reverse the judgment because the evidence shows that Time Warner did not know (1) she was disabled or (2) Hancock had asked for any accommodations, as required by law. We therefore remand the matter to the trial court with directions to enter judgment for Time Warner.

FACTS AND PROCEDURAL HISTORY

Patricia Hancock worked for Time Warner Cable for several years as a warehouse technician, preparing cable boxes for their return to Time Warner customers. Her work involved using a hydraulic pallet jack to move pallets stacked with several hundred pounds worth of cable boxes to her work station. Her job duties included the ability to lift up to 75 pounds at a time. She was considered a valuable employee, and had good relations with her coworkers and supervisors.

After new supervisor Andy Sabala took over, he increased the number of cable boxes that were stacked on individual pallets, thereby increasing the weight of the pallets. On August 22, 2011, Hancock injured her back while moving a fully loaded pallet. According to Hancock, she felt a very sharp pain up her back after she lowered the pallet jack and began to pull it out from the pallet. She felt another sharp pain across her shoulders as she bent down to remove the plastic shrink wrap that held the cable boxes in place.

Hancock went to Sabala's office and said, "I hurt my back and neck out there moving the pallets. You guys have them piled way too high in the back. You're allowing them to pile the boxes way up high. I hurt myself moving it. In the future, you're goingto have to ask them to help me. I need help if they're going to pile them up like that." Sabala, who was busy working, said "all right" while he continued looking at his computer. Hancock left and returned to her work station, where she finished her shift, but worked at a reduced rate due to her back pain. She did not ask to go home early, and did not testify that she asked to see a doctor at the time of her injury.

After Hancock got home, the pain was so bad that at 6:00 p.m. she took a hydrocodone tablet that had been prescribed to her following an earlier surgery. She then took another at 11:00 p.m. The next morning Hancock tried to get an appointment at Kaiser Permanente for her back pain, but was told she needed to be seen by a workers' compensation doctor because she had suffered a workplace injury. Hancock phoned Sabala, who said he should have written up a report and taken her to the doctor the day before, and also told her to come in to work so he could drive her to Time Warner's workers' compensation clinic.

Sabala drove Hancock to the Southern California Immediate Medical Center in Lakewood, which was Time Warner's approved workers' compensation medical provider. The clinic's intake form asked Hancock to list her "current medications." Hancock did not include the hydrocodone she had taken the night before because she believed the question called for her to identify only the medications she took on a regular basis.

Hancock was seen by Dr. Kimberley Ann Ludlow. According to Hancock, Ludlow performed a perfunctory five-minute exam and did not ask her about her job's lifting requirements. Ludlow told Hancock that x-rays showed she hadsevere arthritis in her neck, along with a back strain, but did not show the full extent of that strain. Ludlow never mentioned anything to her about whether or not she was cleared to return to work. However, Ludlow's written report stated that Hancock had been cleared to return to full duty at work. Hancock was also scheduled for a follow-up examination in one week.

Hancock was also required to take a urine test. After Hancock was seen by Ludlow, someone at the clinic's front desk told Hancock she had tested positive for a pain reliever and that she could go back to work, but with restrictions on her use of ladders, heavy machinery and forklifts. There is no evidence that a pallet jack falls within these categories. She was told nothing about restrictions on her ability to lift objects. Hancock asked the front desk person to relay that information to Sabala, who called Time Warner Human Resources Manager Lillian Gomez.

Sabala told Gomez that Hancock had been cleared to return to work, but had tested positive for drugs. Gomez told him that Hancock could "clear" the results by bringing a prescription for the substance detected by the test, and also told him that Hancock could not return to work until the clinic "cleared" the test results. Gomez instructed Sabala to place Hancock on paid administrative leave until Hancock cleared up the situation. Sabala took Hancock back to Time Warner, and she went home from there. Hancock claims that Sabala did not relay what Gomez had said until about one hour after she returned home.

Time Warner had a policy against drug use and Sabala told her she had violated it. She explained that she had taken the medication the night before due to her back injury. Hancock remained at home and was off work all day on August 23. Gomez testified that drug testing was required for all warehouseemployees because it was a "safety sensitive" area. Reading from Time Warner's employee manual, Gomez described the company's post-accident drug testing requirement, which called for the immediate termination of employees who tested positive for drugs or alcohol. According to Gomez, responsibility for determining the results of those tests lay with Ludlow.

On August 24 someone from the workers' compensation clinic called Hancock and told her she needed to provide a copy of her hydrocodone prescription by the following day. She told them she no longer had the prescription bottle but would get a copy from Kaiser. Hancock phoned Kaiser, which told her they could only send it by mail, which would take seven days. Hancock called the clinic back and told them she had ordered a copy of her prescription.

Two days later, Hancock phoned Gomez and told her she had ordered a copy of the prescription and that it would take seven days. Although Gomez denies it, Hancock claims Gomez replied, "we'll see." Gomez did not give her any deadline to provide a copy of the prescription. Gomez contends, but Hancock denied, that Hancock agreed to quickly obtain a copy from Kaiser's website.

Because Hancock had not yet provided a copy of her prescription, Gomez phoned Hancock on September 2 to tell her she was fired for violating the company's drug-free policy. Hancock testified that she asked for more time and offered to go on unpaid leave, but that Gomez said no because she would then be treated differently from other employees who were fired for drug use. She also asked Gomez if she could bring the prescription in after it came in the mail, but Gomez said no. Gomez also told Hancock she could not come on the premises toget her last pay check, and that the check would be FedEx'd to her instead. Gomez denied telling Hancock she could not bring in the prescription after being fired.

On September 4, Hancock received a copy of her hydrocodone prescription in the mail. However, she never contacted Gomez or anyone else at Time Warner, in part because she had been told they would not accept it, and in part because she had been told she could not enter the premises. Time Warner also had an internal appeal process for employees who believed they had been discriminated against. Hancock did not pursue Time Warner's internal appeal process because she believed it applied to only current employees.

Hancock sued Time Warner, stating several causes of action for disability discrimination under the California Fair Employment and Housing Act based on the alleged disability resulting from her back injury. (Gov. Code, § 12900, et seq. (FEHA).)¹ These were: (1) discrimination based on disability (§ 12940, subd. (a)); (2) failure to accommodate her disability (§ 12940, subd. (m)(1)); (3) failure to engage in an interactive process in order to determine the reasonable accommodations she required (§ 12940, subd. (n)); (4) wrongful termination based on her disability (§ 12940, subd. (c)); (5) retaliating against Hancock for having requested reasonable accommodations (§ 12940, subd. (m)(2)); and (6) failure to provide medical leave (§ 12945.2).Hancock also stated causes of action for termination in violation of public policy and defamation.²

Hancock finally produced a copy of her hydrocodone prescription as part of her responses to pretrial discovery requests from Time Warner. Once she did, Time Warner offered to unconditionally reinstate her, an offer that Hancock declined.³

The trial court granted a nonsuit on the medical leave cause of action before trial. At trial, the jury found that although Hancock had a known disability, Time Warner had not discriminated or retaliated against her based on the disability and had not wrongfully terminated her. The jury also...