My day(s) in court

I just spent more than four weeks on jury duty on a civil trial (2.5 days of jury selection, 11 days of testimony plus 3.5 days of deliberations). I know that doesn't work out to 4+ weeks. In San Joaquin County Superior Court, juries only sit from Tuesday through Friday, and we had days here and there where we weren't to come in, so we averaged 3-4 days per week.

An employee sued her employer for disability discrimination based on lasting effects of injuries received in several Workers' Compensation cases.

Aside from being unbelievably shocked that I was actually placed on the jury, since WC is a major portion of my job, I thought I'd share some of what I learned.

All of this is from memory, of course, since we had to leave our notes at the courthouse.

The case was resolved in favor of the Defendant. I removed all names of individuals, but left in the name of the employer. It's public record, anyway.

Approximate Timeline of Events

1998 – LH (a middle school PE teacher with SUSD) has three Workers’ Comp injuries. Two were from breaking up fights (shoulders and neck); one was from being struck by a door on her elbow. At some point during that year or the next, she was sent to an AME. There was also some settlement at some point. $27,000? The three claims are ultimately closed.

Early 2003 – LH’s claims are reopened. She’s again sent to an AME who puts her at ~75% function for her neck. He recommends surgery for one of her shoulders, which she receives. She’s able to return to work with some level of accommodation.

Late 2003 – LH is again sent to an AME for evaluation in November. The result of the examination is the doctor recommends LH is no longer physically capable of teaching PE; however, she should be able to teach in a classroom. His report has a November date.

Early March 2004 – SUSD receives the AME’s report. [Take away – it’s important to have somebody tracking progress of treatment/claims, so there isn’t a large gap between the writing of a report and its receipt – four months is excessive]. A few days after receiving the report, they call LH in to the Risk Management department for a meeting at which they communicate to her the results of the AME’s report and let her know they are putting her on paid administrative leave while they initiate their interactive process to determine what reasonable accommodations (if any) they can provide. During the meeting they ask LH to generate a list of suggested accommodations for them. They give her a two-week deadline. Later that same day, LH asks for a list of her job duties. SUSD’s WC Claims Coordinator makes arrangements for a job description to be left at the front desk for LH to pick up. The job description dates from 1973.

There were a lot of letters back and forth. Something like eight from the district either to LH or to her attorney and about five from LH or her attorney to the district. Once LH referenced her attorney in her first letter (which included some possible work accommodations), all further correspondence from SUSD was addressed only to her attorney.

Mid April 2004. The Reasonable Accommodation Committee comes to a conclusion. LH is notified early in May that her Paid Administrative Leave is being converted to Extended Illness Leave. One of the provisions of this type of leave is something called a “sub differential” where the pay for a substitute teacher is deducted from the pay of the teacher on leave. This doesn’t have an impact until LH receives her check for September and her net pay is about $75. Similar deductions are taken in October, November and December.

[Extended Illness Leave. When a bargaining unit member is absent from his/her duties on account of illness or accident, for a period of five (5) months or less, whether or not the absence arises out of or in the course of employment of the bargaining unit member, the amount deducted from the salary due him/her for any month in which the absence occurs shall be the lower of either the sum which is actually paid a substitute employee or Step “A” of the absent bargaining unit member’s salary class. Entitlement to sick leave provisions under this Section, if any, shall be considered “entitlement to other sick leave” for the purposes of computing benefits under the provisions of Section 45 192 of the Education Code if the absence is for industrial accident or illness and shall be used after entitlement to all regular sick leave, vacation, or other available paid leave has been exhausted. (from “Contract between SUSD and California School Employees Associate (CSEA)) ]

During her leave, LH applies for the open position of Social Studies teacher; however, her application is refused because she is not credentialed appropriately to teach social studies. She has taught social studies in the past; however, due to “No Child Left Behind,” SUSD can no longer give her a waiver to do so without losing state (federal?) funding for the students in the class.

LH is offered a position that she accepts in Mid-December. She begins working as a middle school Opportunity Teacher in January of 2005.
At some point, her Workers’ Compensation claims all close.

June of 2007. The position of Opportunity Teacher is eliminated and LH is presented with a list of open positions. She applies for and is given a position at a district High School teaching PE. The head of Risk Management (or Human Resources?), remembering her earlier case, asks her to bring in a release from her physician that she is physically able to do the job. She complies, and is still teaching PE at that High School.

Things that nearly sunk SUSD’s case

SUSD didn’t have a list of essential job functions for LH’s job. If her attorney had spent more time and energy on this particular issue, her case would have been stronger, and SUSD might very well have lost.

[from LawRoom: ... one of the most important steps employers must take to comply with disability discrimination laws is to determine the "essential job functions" for every employee. Specifically, employers need to know the primary and fundamental tasks that a person filling each position must perform.]

Had items listed in a letter as “essential functions” with no other documentation to back them up. The two that made the least sense had to do with paperwork requirements and the need to be physically able to assist an injured student, both of which would seem to apply to all teachers, not just PE teachers.

SUSD’s Claims Coordinator continually saying she couldn’t specifically recall any details while she was on the witness stand. While it’s unreasonable to expect someone could remember details from that long ago, several jurors thought she was lying as a result.

SUSD communicating with LH’s attorney, rather than directly with LH. It took a lot of convincing before several jurors would accept that as standard practice and that communicating with her attorney should be considered as the same as communicating with LH since she has hired him to represent her and it’s his responsibility to make sure she knows all the details of any communications about her.

Not inviting LH to the Reasonable Accommodation Committee meeting to discuss her case, even though their customary practice was to NOT invite employees unless those employees specifically requested to be included.

Several jurors thought it wasn’t fair when SUSD didn’t give LH the accommodations she requested. We had to spend a lot of time focussing on the law as it pertains to Reasonable Accommodations to show that an employer doesn’t have to give an employee the accommodation they request or even the “best” accommodation and that reasonable accommodation may include placement into an alternate position, if deemed appropriate by the employer.

Plaintiff came across on the stand as very likeable, dedicated and quite passionate about her work. She’s the sort of teacher I would want my children to have.

Jurors that were swayed by “fairness” arguments and emotional arguments, rather than legal facts. Plaintiff’s attorney did a good job of eliciting sympathy for her plight.

Things that sunk Plaintiff’s case

Didn’t prove that Defendant failed to act in good faith.

Long-winded attorney.

Seeming lack of organization and planning on part of attorney.

Attorney’s smug little smile every time Defendant’s attorney was making a point during her closing argument.

Putting a lot of emphasis on things that were “unfair” or “wrong” that were actually determined by the contract that had been agreed-upon by the teachers’ union, such as the sub differential.