Scott Lowery was employed as a heating and air conditioning technician in the HVAC department of Pierce College in Woodland Hills. On March 1, 2006, Lowery experienced sharp pain in his lower back during a two-day project fitting sound-deadening panels on electrical generating equipment, a task that required lifting and prolonged and repetitive squatting. Lowery filed a worker’s compensation claim form for his March 1, 2006 back injury. After working for the next eighteen months with varying degrees of accommodation for his inability to lift heavy tools and equipment and to work in difficult positions and locations, the employer placed the technician on disability leave, to which he was entitled under his collective bargaining agreement.

In 2007 Dr. Grahek the PTP, gave permanent work restrictions of no bending, kneeling, or squatting that causes pain, and no lifting over 30 pounds. Because permanent work restrictions had been prescribed, the District scheduled an interactive meeting for October 8, 2007 to determine whether the permanent work restrictions can be accommodated based on the essential functions of his job, and if they cannot, to evaluate alternative positions.

There was conflicting testimony about what occurred at this meeting. Lowery was provided with a copy of his work restrictions taken from Dr. Grahek’s Permanent and Stationary Report, and reviewed the job function analysis, function-by-function. A number of participants reported that Lowery did not express any objections or disagreements with Dr. Grahek’s restrictions. Lowery testified at trial that he had told everyone at the meeting that the work restriction information was wrong – that he “was doing a lot more than this already. I didn’t realize those restrictions were enforced at the time.” The District concluded that the HVAC department had accommodated Lowery’s work restrictions for 18 months, but it was not reasonably feasible to continue doing so on a permanent basis. Lowery was removed from his modified duty position at the October 8, 2007 interactive process meeting, and was placed on paid industrial injury leave for 36 months, until October 2010. He was advised by letter on a number of occasions about other possible positions, and to respond with his resume and any additional medical information, but did not.

But, on November 29, 2007 Dr. Grahek responded to a letter sent by the claims administrator indicating that he had removed all the restrictions that would have required accommodation. This information was not sent to the employer until 2009. Nonetheless the trial court charged the employer with constructive knowledge of this information as of November 29, 2007.

Lowery was aware that his workers’ compensation attorneys had scheduled him for six Agreed Medical Examinations (AME’s) between August 2010 and November 2011 (including an AME by a court-appointed workers’ compensation doctor). However, he declined to attend any of them, because he did not believe they would help him recover his job, and because one of these examinations was scheduled during a time he was caring for his mother. He had been told by other workers that the AME’s purpose was not to get his job back—which was his goal—but to obtain a job rating in order to prepare for a settlement and dismissal of his workers’ compensation claim.

By letter dated May 21, 2010, Lowery was advised that his leave was nearing an end, and offered him four options. The first option was to return to work “ith or without request for accommodation.” The other three options involved his resignation and/or retirement. Lowery did not respond.

Lowery sued the District and the TPA for damages under FEHA. The TPA was dismissed before trial. The trial court found that Lowery was able to perform the essential functions of his HVAC Technician position “with or without reasonable accommodation”; that the District failed to provide reasonable accommodations; that Lowery’s disability was a motivating factor in the District’s failure to accommodate and failure to reinstate Lowery to his position; and that the District’s failure to accommodate caused Lowery harm. ordered back-pay and non-economic damages totaling $437,460, and ordering his reinstatement to his position as an HVAC Technician at Pierce College, as of January 1, 2012, in lieu of front-pay. The District Appealed.

The Court of Appeal in the unpublished case of Lowery v. LA Community College Dist. found that the trial court’s decision as to the employer’s failure to engage in a good faith interactive process supported in part, but the decision as to the employee’s claims for wrongful discharge and failure to accommodate were unsupported.

It was Lowery’s burden to present evidence that he was able to perform the essential duties of his position, with or without reasonable accommodation. The record contains no substantial evidence that on October 8, 2007, Lowery was able to perform the essential duties of his position, with or without reasonable accommodation. All the District could do was to compare those work restrictions with the job’s essential functions identified by those in charge of the college facilities and the HVAC department (to which Lowery had voiced no dispute, and had presented no contrary evidence), and to hear from those in charge that the HVAC department could not permanently accommodate a technician who could perform only under those restrictions. The evidence did not identify any reasonable accommodation that would have enabled Lowery to perform all the essential functions of his position as of October 8, 2007. However, there was such evidence that was constructively received by the TPA after that date The damages awarded by the trial court, both for back pay and for noneconomic damages, must be reversed for redetermination of the damages to which Lowery is entitled as a result of the District’s breach of its obligation to engage in the good faith interactive process after November 29, 2007.