Virglio Duarte worked for The Vons Companies, Inc. as a baker since 1990. He suffered a work-related injury in 2009 that restricted his ability to use his left arm. Vons rescheduled Duarte for 12 weeks to a shift at which he had access to a “baker’s helper,” who did the lifting, pushing and pulling that the baker usually does.

Vons generally offers up to 12 weeks of what it calls modified duty to employees who have a workers’ compensation injury. If the employee continues to have work restrictions after 12 weeks, he or she is taken off this modified duty and put on temporary disability – in this case involuntarily. Vons investigated another position for Duarte that turned out to be unavailable. After a lengthy leave of absence, Vons terminated Duarte.

Duarte contends in his civil suit against Vons that he was not accommodated properly, Vons failed to engage in a good faith interactive process, and he was harassed because of his disability. Duarte brought claims under FEHA, as well as other causes of action. Vons moved for summary judgment arguing there was no triable issue of fact. The trial court granted a summary judgment in favor of Vons, and the Court of Appeal affirmed in the unpublished case of Duarte v. The Vons Companies, Inc.

For a plaintiff to prevail on claims for disability discrimination and failure to provide a reasonable accommodation, he or she must show that he or she was able to perform the essential functions of the position from which he or she was terminated with or without a reasonable accommodation. The FEHA does not require an employer to shift a disabled employee’s essential duty to other employees. The statute does not require other employees to work harder or longer. Slowing production or assigning an injured worker lighter loads is not required by law.  Also, that another employee is required to do an employee’s duties suggests that the duties are essential.

Although an employee cannot be expected to identify and request all possible accommodations during the interactive process, “the employee should be able to identify specific, available reasonable accommodations through the litigation process, and particularly by the time the parties have conducted discovery and reached the summary stage.” .) If the employee cannot identify such a reasonable accommodation after discovery in litigation, he or she has suffered no remediable injury from any violation.

The only accommodations Duarte proposed was to have a helper do all the lifting, pulling, pushing, and reaching and pouring of heavy material and allowing Duarte to use a scooper instead of pouring. The proposed accommodation was not reasonable as a matter of law. With regard to Duarte’s claims that Vons did not fulfill its duty to engage in the interactive process, Duarte’s failure to identify a reasonable accommodation that was available at the time the interactive process should have occurred, dooms his claim.