Factual and Procedural Background
In August 1996, Jensen, a branch manager at Wells Fargo, was the victim of an attempted bank robbery. On the day of the attempted robbery, Jensen was the first employee to arrive at the bank. As she put her keys in the door, two robbers approached her, put a gun to her head, and ordered her to unlock the door.
Once inside, the robbers told her to disarm the alarm and open the vault and ATM. They also “repeatedly threatened to kill her, at one point tying her up, putting two guns to her head, and pulling the hammers back.” (Jensen v. Wells Fargo Bank, 85 Cal.App.4th 245, 249 (2000).)
The robbers went through Jensen’s purse, found her driver’s license, and made a point of telling her that they knew where she lived now. The police eventually arrived and arrested the two robbers, who were later convicted. However, Jensen believed that there were two additional individuals who were involved in the robbery (but who were never apprehended). After the robbery, Jensen tried returning to her position at Wells Fargo, but she found the situation too stressful. Accordingly, she stopped working in mid-August 1996.
In May 1998, Jensen sued Wells Fargo for failure to provide a reasonable accommodation in violation of California law, among other claims. Jensen alleged that after the attempted robbery, she was diagnosed with posttraumatic stress disorder, which precluded her from working in a bank branch. Specifically, Jensen became anxious and fearful to a disabling degree when she had to interact with men who reminded her of the robbers. Jensen further alleged that she made Wells Fargo aware of her mental disability; requested an accommodation for her disability; applied for several transfers within Wells Fargo; and identified available positions that would accommodate her disability. Jensen also alleged that Wells Fargo informed her that it had no available job within her work restrictions.
Wells Fargo argued that it never actually terminated Jensen’s employment. Instead, Wells Fargo pointed out that Jean Dickten-Phillips (“Dickten-Phillips”), Wells Fargo’s vice president of human resources, was assigned to work with Jensen to find her a suitable position. Wells Fargo also continued to send postings about open Wells Fargo positions to Jensen.
Wells Fargo also argued that for the Wells Fargo positions for which Jensen applied, Jensen did not have the required skills; or that the position was filled by two internal candidates who previously worked in the same department; or that the other candidates’ qualifications more closely matched the needs of the position.
Evidence was a presented that Jensen refused a courtesy interview in the trust department; that Jenson said that she was afraid of customers and needed an “office environment;” and that Jenson refused a temporary research position in El Monte/Retail General Lending Operations.
Jensen stated that in August or September 1996 after the robbery, she was told that she was being replaced as branch manager but that Wells Fargo would find another position for her if she wanted to return to work. Jensen’s supervisor “reportedly told her she could return to work only if she had a doctor’s release which, due to her condition, was never forthcoming.” (Id. at 252)
According to Jensen, she had difficulty obtaining the bulletin that contained Wells Fargo’s open position listings and had to make repeated phone calls to obtain a copy. In November 1996, she spoke with a Wells Fargo human resources manager about a posted job in which Jensen was interested. However, Jensen was later informed she did not have the required skills for the job. When Jensen subsequently interviewed for a job in the cash management department, she was told during the interview that they wanted someone with cash management experience. In December 1996, Jensen also applied for the position of lease servicing consultant but received no follow-up from anyone.
Jensen sent Dickten–Phillips a list of six jobs that she was interested in, but Jensen obtained no interviews. Jensen also applied on her own for jobs as a customer services representative, a trust associate, and a loan administrator. She never obtained interviews for any of these positions either. With the assistance of Dickten-Phillips, Jensen also applied for a compliance representative position but was later informed that the position was no longer being offered. Jensen was subsequently offered a three-month-long temporary job, which she turned down.
In June 1997, at Dickten–Phillip’s suggestion, Jensen applied for a human resources position in El Monte but was not hired for that position either.
Jensen denied stating that any new position must offer the same compensation as branch manager and pointed out that some positions for which she applied offered a lower salary. She also denied refusing to interview with the trust department or to work in certain locations. However, she admitted to not wanting to interact in person with the public or strangers or to go to unfamiliar locations.
Jensen stated that as a result of the robbery, she suffers from “anxiety, nervousness, depression, lack of confidence, a helpless feeling, and a feeling of humiliation.” (Id. at 256) She also suffers from panic attacks and has “headaches, grinds her teeth, and has nightmares and trouble sleeping.” (Id.) Jensen maintained that she is unable to work in a bank branch or one that involves working with the public or with cash due to her condition.
Wells Fargo’s Failure to Provide a Reasonable Accommodation in Violation of California Law
For the Court of Appeal, the question was whether Wells Fargo failed to reasonably accommodate Jensen in accordance with California law. Specifically, did Wells Fargo fail to accommodate her when it did not reassign her to a vacant position?
To succeed on a failure to accommodate claim, a plaintiff must establish that he/she suffers from a disability and that he/she is a qualified individual. In turn, a plaintiff proves that he/she is a qualified individual by showing that he/she can perform the “essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.” (257 (emphasis added).)
Wells Fargo sought to establish that it did everything that it was required to do to reasonably accommodate Jensen’s disability. The Court of Appeal disagreed.
Instead, the Court of Appeal held that Wells Fargo must demonstrate that “(1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within [Wells Fargo] for which [Jensen] was qualified and which [Jensen] was capable of performing with or without accommodation; or (3) [Wells Fargo] did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because [Jensen] failed to engage in discussions in good faith.” (Id. at 264)
Reviewing the evidence, the Court of Appeal found that there was a factual dispute as to whether Wells Fargo offered a reasonable accommodation to Jensen; whether there was any open position within Wells Fargo that could have accommodated Jensen’s limitations; or whether the informal process broke down, and, if so, who was responsible.
The Court of Appeal acknowledged that Wells Fargo offered (and Jensen rejected) a temporary job. However, the Court of Appeal also found that a temporary position is not a reasonable accommodation. Instead, “[i]t represents, like unpaid leave, a way to put a disabled employee on hold while the attempt to locate a permanent position is ongoing.” (Id.)
On the question as to whether there was a vacant position to which Jensen could be reassigned, the Court of Appeal found that Wells Fargo “never attempted to definitively establish that there were no positions within [Wells Fargo] which met Jensen’s qualifications and restrictions.” (Id.) Instead, Wells Fargo presented evidence that for the positions to which Jensen applied, she “either lacked the required skills or lacked some of the preferred qualifications and that the positions went to others who were better qualified.” (Id. at 265)
The Court of Appeal noted that this “begs the question of whether there were other vacant positions within the Wells Fargo organizational structure of which [Jensen] was unaware or unknowledgeable which might have met her limitations and qualifications.” (Id. at 264-65) “‘Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.’” (Id. at 265 (citation omitted).)
The Court of Appeal also noted that to the extent that Wells Fargo “rejected Jensen for positions for which she was qualified because it had applicants who were more qualified or had seniority, it overlooks that when reassignment of an existing employee is the issue, the disabled employee is entitled to preferential consideration.” (Id.)
Based on this and other evidence, the Court of Appeal concluded that Wells Fargo failed to meet its burden of establishing the absence of a triable issue of material fact with respect to Jensen’s failure to provide a reasonable accommodation claim. Click here to read the full Court of Appeal opinion.
If you have questions about reasonable accommodations under California law, call ((916) 612-0326) or email ([email protected]) Finley Employment Law today. Finley Employment Law serves clients throughout California, including Sacramento, Roseville, Davis, Folsom, and Elk Grove.
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