Antoinette Alvarez was a studio manager for Lifetouch, in which position she spent 20 to 25 percent of her time taking photographs. After Alvarez suffered a workplace injury to her neck and right shoulder in 2013, she provided Lifetouch a doctor’s note placing restrictions on her work, but for the first two months thereafter

Alvarez continued to take photographs without any accommodation or discussion with Lifetouch on how to accommodate her restrictions. When her condition worsened in 2014, Lifetouch provided Alvarez a part-time staff member to assist with Alvarez’s photographic duties as an accommodation for Alvarez’s injuries.

But after a doctor in her workers’ compensation case opined Alvarez was permanently disabled and could no longer perform photography, Lifetouch terminated Alvarez’s employment.

When Alvarez threatened to sue, Lifetouch reinstated her employment in a position that did not require photography, but on less favorable terms. Alvarez briefly worked in the new position before taking leave and later resigning.

Alvarez brought claims under the California Fair Employment and Housing Act for failure to accommodate; failure to engage in a good faith interactive process; discrimination; retaliation; harassment; failure to prevent discrimination, retaliation and harassment; wrongful termination; and constructive discharge. Alvarez also alleged interference with her right to leave and retaliation in violation of the California Moore-Brown-Roberti Family Rights Act.

The trial court granted summary judgment, finding Alvarez could not perform the essential job function of photography, she was not denied an accommodation or leave, and the conduct of Alvarez’s supervisors was not sufficiently severe or pervasive to constitute harassment under FEHA or support a claim for constructive discharge. The court of appeal reversed in part and remanded in the unpublished case of Alvarez v. Lifetouch Portrait Studios.

Although Lifetouch engaged in the interactive process and provided accommodations for Alvarez’s injury after a flare up in the summer of 2014, its failure to take any steps during the first two-month period following Alvarez’s injury raises a triable issue of fact.

Similarly, Alvarez presented evidence that at the time of her termination in July 2015, she could perform photography with assistance from a second employee when necessary to perform certain tasks.

Whether the photography studio where Alvarez worked was typically staffed with a second staff member who could assist Alvarez is also a disputed question of fact which cannot be resolved by summary judgement.

As to her harassment claim, however, Alvarez has not presented evidence to show severe or pervasive harassment by her supervisor. Nor has she shown the conditions of her employment were intolerable when she resigned during her medical leave in July 2016. The summary judgment on this issue was therefore affirmed.