Summary adjudication of employment harassment claims reversed because aggregate of evidence may factually support a claim

In Rehmani v. Superior Court (Real Party: Ericsson, Inc)(filed March 29, 2012) 2012 DJDAR 4177, the Court of Appeal, Sixth Appellate District granted Rehmani's petition for writ of mandate and overturned the Santa Clara Country Superior Court's summary adjudication of Rehmani's claims of workplace harassment based on national origin and religion.

At issue in the appeal was Rehmani's allegation against employer Ericsson that it failed to ameliorate the hostile work environment that existed as a result of abuse he suffered from 3 fellow employees. Rehmani is a Muslim of Pakistani origin; the fellow employees are of Indian origin. He claimed that, because of his national origin and religion, the others were rude, dismissive and hostile; they were unwilling to help him with his projects and made comments concerning the hostile relationship between Pakistan and India. Specific comments included one about the need for India to bomb Pakistani terrorists; a comment that if the fellow worker did not assist him, would he "blow me up?" and a prank birthday party for Rehmani while he was away from the office "celebrating 9/11 and planning terrorist attacks."

To prove entitlement to a summary adjudication of dismissal of these harassment claims, Ericsson needed to establish that Rehmani could not show not only a hostile work environment, but also its failure as his employer to respond with appropriate corrective action. Ericcson asserted in the trial court that the incidents were isolated and not caused by Rehmani's religion or national origin, and not so severe or pervasive as to constitute a hostile environment. Concerning corrective actions, Ericsson set forth evidence that none of the fellow employees were managers, and that Rehmani's complaints to his superiors never asserted (1) "harassment" or "discrimination", and (2) he never said his alleged mistreatment was due to his being Pakistani of Muslim. In any event, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9-11 prank.

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Arbitration clause in employment contract superseded that in earlier agreement and made wrongful termination claim not subject to arbitration

contract.jpgIn the morass of paperwork accompanying the start of employment, an employer may ask the employee to sign multiple documents discussing arbitration: an employee handbook, an employer alternative resolution policy statement, and/or the contract of employment may be among the many documents. Which executed document concerning arbitration controls if their content differs?

This question is presented in Grey v. American Management Services (filed March 28, 2012) 2012 DJDAR 4075. When plaintiff applied for employment, defendant provided him with an application packet that contained an Issue Resolution Agreement (IRA) which he signed. The IRA required arbitration of any claim "arising out of or [in] relation to [the] application or candidacy of employment." After he accepted employment, plaintiff signed an employment contract that required arbitration of "a dispute arising out of the alleged breach of any provision of this Agreement." Plaintiff was terminated from his employment and filed a lawsuit primarily alleging employment discrimination and wrongful termination (no claim of "breach of contract"). Defendant successfully moved to compel arbitration, and the arbitrator found in its favor.

On appeal, the Court of Appeal, Second Appellate District, Division Four, reversed, finding that Grey was not required to submit his claims to arbitration under the terms of the employment contract.

The appellate court delineated the critical issue as whether the parties intended their writing (the employment agreement) to serve as the exclusive embodiment of their agreement. The employment agreement included an integration clause providing it was "the entire agreement of the parties and supersedes all prior and contemporaneous discussions and understandings."

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Contractor Licensing Law revisited: triable issue whether contracting entity and licensed entity are one and the same

Contractor.jpg
Since the California Legislature amended Business & Professions Code section 7031, subdivision (e), to narrow the doctrine of substantial compliance with contractor licensing requirements, a contractor attempting to recover for construction work performed may no longer avoid the harshness of the bar against recovery by claiming lack of licensure was merely a matter of form. On this subject, I authored the case of Opp v. St Paul Fire & Marine Ins. Co. (2007) 154 Cal.App.4th 71. Opp involved an individual who was barred from utilizing his personal license because he was a different entity than the corporate entity that contracted to perform the work in question.

In this blog's June 27, 2011 edition, I discussed the contrasting facts of Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694. There, the trial court's judgment barring recovery was reversed because the business name listed in the contract was deemed one and the same as the individual sole proprietor operating the business, although the owners name appeared nowhere in the business name; the business was not a legal entity licensable separate from its owner who was licensed.

Montgomery Sansome LP v. Rezai (filed March 28, 2012) 2012 DJDAR 4042 presents yet another variant on this issue. Defendants hired "Montgomery Sansome Ltd. Lp, 305 Adrian Road, Millbrae" to perform repairs at an apartment building they owned; the work orders had the quoted information printed on the work orders along with contractor's license # 741713. Defendants paid $65,000 on the contract prior to terminating it. Plaintiff claims a balance of about $203,000 is owed it.

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Off-campus molestation: vicarious liability of school district for supervisory employees' negligence in hiring and supervising offending school counselor

School.jpgWe all too frequently read about public school teachers developing sexual relationships with their young, impressionable students. Are the schools themselves vulnerable to lawsuits brought by students and their parents when such conduct occurs away from the school environment? In the discussion that follows, a path of relationships, as determined by the California Supreme Court, presents the answer to this question.

To start, California Government Code section 815 sets forth that public-entity liability is strictly statutory; one such basis of liability is found in section 815.2: vicarious liability for the act or omission of an employee acting within the scope of employment if that conduct would give rise to liability outside of the pubic-entity realm, except where the employee is immune. Can a public school district be liable for a school counselor's molestation of a student outside of the scope of employment based on an allegation of vicarious liability for the negligence of school administrators in hiring and supervising the counselor who the administrators knew (or should have known) had propensities for such misconduct?

In C.A. v. William S. Hart Union High School District (filed March 8, 2012) 2012 DJDAR 3131, the state high court unanimously answers yes, reviving plaintiff's case after the trial court had sustained the school district's demurrer to plaintiff's complaint, and the Court of Appeal had affirmed. This reversal by the Supreme Court does not mean that the plaintiff immediately wins his case. It means, as the court states, plaintiff's theory is legally viable and should not be summarily dismissed at the pleading stage. He still will need to prove his case: if supervisory school employees are proven to have breached their "protective duty of ordinary care" by negligently exposing plaintiff to a foreseeable danger of molestation by his counselor, resulting in injury, and assuming no immunity applies, the school district is liable.

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Where party fails to prove insurance coverage or that alleged insurer waived right to contest coverage, party is not entitled to jury instruction on bad faith

Contract fail.jpgErica Howard suffered severe injuries as a result of a car accident when she was being driven home from a New Year's Eve party by Paul Peterson, who had become intoxicated at the party put on by Donald DeWitt. The location of the party was an apartment complex, where DeWitt served as the on-site manager. Lisa Capelletti owned the apartment complex; she insured herself for $1 million per occurrence under a policy provided by Monterey Insurance Company.

Howard settled her claim against Peterson for $250,000 (policy limit) and her claim against Cappelletti for $50,000 (under the Monterey policy). Prior to these settlements, DeWitt was denied coverage by Monterey, which declined to provide him with a defense. Howard got a default judgment against DeWitt in the amount of $4.7 million. Monterey unsuccessfully tried to get this default judgment set aside, and eventually negotiated a settlement with Howard for $3.5 million in satisfaction of the judgment.

In DeWitt v. Monterey Insurance Co. (filed March 13, 2012) 2012 DJDAR 3311, DeWitt's claim of bad faith against Monterey resulted in a defense jury verdict. DeWitt appealed claiming the trial court erred in denying his request that the jury be instructed in CACI No. 2334, which sets forth the elements of bad faith when an insurer assumes the duty to defend but fails to accept a reasonable settlement offer. The Court of Appeal, Fourth Appellate District, Division One, affirmed.

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Bar of Workers' Compensation claim based on personnel action includes migraines as manifestation of claimed psychiatric injury

Workers' Compensation.JPGLabor Code section 3208.3, subdivision (h), states that an employer is not required to compensate an employee for a psychiatric injury substantially caused by a lawful, nondiscriminatory, good faith personnel action. What about such a claim of injury in the form of migraine headaches?

In County of San Bernardino v. Workers' Comp. Appeals Bd. (filed March 2, 2012) 2012 DJDAR 2833, County employee John McCoy claimed he suffered migraine headaches as a result of on-the-job stress caused by friction with his supervisor. The WCJ found the injury not compensable, agreeing with County's argument that his psychiatric injuries were caused by lawful, nondiscriminatory, good faith personnel action. The WCAB granted reconsideration to McCoy and concluded section 3208 (h) did not bar compensation for migraines. Then in its denying the further reconsideration request of County, the board noted migraine headaches are not classified by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders as a "psychiatric injury."

County petitioned for Writ of Review. The petition was granted by the Court of Appeal, Fourth Appellate District, Division Two, which annulled the board's order.

The appellate court felt guided by legislative intent rather than the non-inclusion of migraine headaches in the cited psychiatric manual category. It viewed the intent of 3208.3 (h) to exclude from compensability claimed injuries directly and solely resulting from psychological suffering due to good-faith actions because the subjectivity of such injury claims bears a great potential for fraud and abuse. Telling in this case was the fact that McCoy added his claim of migraine headaches on the first day of his trial.

Full price offer does not invoke offering real estate broker's contractual right to commission

Real Estate.jpgThere are times when real estate brokers will claim entitlement to a commission, even though the sale of the real property in question has not been completed. One such case is presented in RealPro, Inc. v. Smith Residual Company LLC (filed February 28, 201) 2012 DJDAR 2655.

Defendant listed its vacant land for sale with its listing broker on the following terms: $17 million cash or such other price and terms acceptable to defendant and additional standard terms; a cooperative broker may enforce the listing agreement as a third party beneficiary (4% total commission). Within the listing period, plaintiff broker submitted to the listing broker a written offer to purchase the property for the full price of $17 million, all cash. About one month later, defendant responded with a counteroffer of an increased listing price of $19.5 million. The counteroffer was not accepted. Plaintiff eventually demanded its 2 percent brokerage fee and sued defendant for refusing to pay.

In Riverside Superior Court proceedings, defendant demurred on numerous grounds including condition precedent: that the listing price was alternatively such other price and terms acceptable to owner and escrow must close prior to payment of any commission. The trial court sustained the demurrer without leave to amend. The Court of Appeal, 4th Appellate District, Division Two, affirmed, concluding that the allegations of plaintiff's action established as a matter of law that there was no enforceable written contract entitling plaintiff to a commission.

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Neurologist's DMV seizure evaluation of patient privileged in barring patient-caused accident claim of injured party

DMV.jpgPlaintiff Cang Wang suffered critical injuries when struck by the vehicle driven by Amr Sarieh, who had lost consciousness at the wheel as a result of an epileptic seizure. Sarieh recently had his driving privileges restored based on an evaluation filed with the DMV by his treating neurologist defendant Christianne Heck, M.D., clearing him to drive. In Wang v. Heck (filed January 24, 2012, certified for publication February 12, 2012) 2012 DJDAR 2131, the Court of Appeal, Second Appellate District, Division Four, affirmed the trial court's grant of summary judgment dismissing the lawsuit against Dr. Heck.

The litigation privilege is found in California Civil Code section 47, subdivision (b), and affords litigants and witnesses in judicial and quasi-judicial proceedings freedom of access to these processes without fear of being harassed by later lawsuits against them for testimony they give or steps they take in connection with those proceedings. (See Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) The appellate court in Wang agreed with the trial court that defendant's form evaluation presented to the DMV fell within this privilege and barred plaintiffs action.

The Court of Appeal rejected plaintiff's argument that defendant's negligent conduct was her failure to warn Sarieh not to drive, which was independent of her completion of the DMV evaluation form; failure to warn her patient was not a communication within the litigation privilege according to plaintiff.

The court cited Gootee v. Lightner (1990) 224 Cal.App3d 587, where the defendant psychologist had performed testing on plaintiff's family in order to testify in child custody proceedings; claims against this court expert acting in a testimonial capacity are barred. Similar reliance is placed on Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 concerning the claim that a toxicologist was negligent in reaching findings as to cause of death. Because the gravamen of plaintiff's claim in the instant case was Dr. Heck's completion of the DMV evaluation form, the litigation privilege likewise extended to her conduct.

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Foundational proof in red-light-camera cases must be based on personal knowledge

traffic Lights.jpgMunicipal governments in California face many challenges. Two of these are to improve traffic safety and to raise revenues. The advent of red-light-camera enforcement proposed to assist these divergent objectives. But a simple problem of meeting evidentiary requirements may be derailing this campaign.

In People v. Borzakian (filed January 23, 2012, certified for publication February 10, 2012) 2012 DJDAR 1923, defendant contested the mailed citation she received for failing to stop at a red light based on automated photographic evidence. At trial, she objected to the People's evidence that consisted of a police officer testifying en masse in traffic court that the photographic equipment provided by a private company was properly calibrated and maintained, causing the photographic depiction to be accurate. She objected for lack of foundation, hearsay, and violation of the right of confrontation stated in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527. The trial court overruled the objection and convicted her. Defendant appealed via transfer to the Court of Appeal, Second Appellate District, Division Seven. That court reversed the judgment.

The appellate court noted a split of previous opinions on the subject. In People v. Khaled (2010) 186 Cal.App. 4th Supp. 1, the Orange County Superior Court Appellate Division found that unless a testifying officer had personal knowledge of the foundation for introducing into evidence photographs, the underlying workings of the automated camera and the business records in connection therewith, the photograph was inadmissible. The Los Angeles Superior Court Appellate Division disagreed in People v. Goldsmith (2011) 193 Cal.App.4th Supp.1. Goldsmith found the photographs were not statements from a human declarant, and they were entitled to a presumption of accuracy that had to be rebutted by a challenging defendant.

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Hotel bathtub slip-and-fall: previous accidents must be sufficiently similar to give innkeeper notice of dangerous product/condition

February 27, 2012

Hotel.jpgIn Howard v. Omni Hotels Management Corp. (filed January 11, 2012, certified for publication February 8, 2012) 2012 DJDAR 1786, plaintiff injured himself as a result of a slip and fall in the bathtub while staying at one of defendant Omni's rooms in San Diego. He sued Omni for premises liability and negligence; he also sued the bathtub manufacturer, Kohler, for negligence and strict liability. Both defendants succeeded on summary judgment; however, the trial court set aside the judgment in favor of Omni when it granted a motion for new trial on the grounds that there were triable issues of fact regarding the existence of constructive notice of an unreasonably dangerous condition concerning two previous bathtub accidents in another Omni hotel.

The Court of Appeal, Fourth Appellate District, Division One, affirmed as to Kohler and reversed as to Omni with directions to enter a defense summary judgment. Concerning the claims against Kohler, the court found that plaintiff failed to present a sufficient factual basis supporting the application of a higher safety standard for the bathtub than the industry safety standards as proven to have been exceeded by defendants. As to Omni, plaintiff failed to show that the asserted prior incidents were substantially similar.

The ruling in favor of Kohler illustrates that a plaintiff does not necessarily get past a summary judgment by presenting the declaration of a "dueling" expert. Here plaintiff presented its expert's opinion that a greater standard than the industry standard would be better. However, the appellate court agreed with the trial court that merely contraverting what was a better standard did not create a triable issue. Kohler's exceeding the industry standard creates a presumption of non-defect/due care unless plaintiff could show Kohler had knowledge of greater than the expected dangers that should have been addressed by a higher standard of design.

Another common misconception is that a prior accident of the same general nature puts a defendant on notice of the danger that caused a present accident. Here, Omni had experienced two prior bathtub accidents in one of its hotels across the country, in New Haven, Connecticut. But the evidence presented by plaintiff did not give any detail about the condition of the other bathtubs or the medical condition of the hotel guests who fell. Plaintiff had the burden to show sufficient similarity and the court here failed to find sufficient evidence that the plaintiff had done so. (See Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734.)

Factual issue of hirer's negligent exercise of retained control in form of affirmative contribution renders reversal of grant of summary judgment

February 23, 2012

gavel.jpgIn Tverberg v. Fillner Construction Inc. (filed January 26, 2012) 2012 DJDAR, general contractor Fillner (defendant) was expanding the fuel pump area of a gas station. Two items of work involved the construction of a canopy and the erection of concrete posts to prevent vehicles from colliding with the fuel dispensers. Plaintiff Tverberg was the independent contractor who was the foreperson of Perry, the subcontractor constructing the canopy. Another sub, Alexander, was erecting the concrete posts. Plaintiff asked defendant's lead person twice, once before the start of the canopy construction and once on the next day after that construction started, to cover the wholes that had been dug where the posts (unrelated to canopy construction) were going to be installed. On the first occasion, the response was no equipment was available that day to over the holes. On the second occasion, a tractor was used by defendant to flatten the dirt piled around the holes. Later on that second day, Tverberg injured himself when he fell into one of the holes while walking toward the canopy work area.

In Solano Superior Court, defendant was granted summary judgment on each of two claims of liability: (1) breach of nondelegable regulatory duty and (2) negligent exercise of retained control. The Court of Appeal, First Appellate District, Division Four, reversed.

The appellate court first notes that the California Supreme Court in SeaBright Ins. V. US Airways, Inc. (2011) 52 Cal.4th 590 determined that the first theory is not actionable because the duty is delegable. However, the second theory here, if factually in dispute, is actionable. The court finds that triable issues of fact remain on that theory and reversed the judgment accordingly.

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Insufficient evidence of employer's retaliatory intent arising from employee's allegation charging sexual harassment against supervisor

Police_Line.jpg"This case has a somewhat tortuous procedural history." With this introductory comment, the California Court of Appeal, Second Appellate District, Division Four, clues the reader in on what lies ahead in its opinion of Joaquin v. City of Los Angeles (filed January 23, 2012) 2012 DJDAR 939. And the facts are as tortuous as the procedural history. After briefly reviewing the facts and proceedings, I will share some thoughts on the reasoning that gets the court to its reversal (without remand) of the jury's $2.1 million verdict awarded Joaquin.

Richard Joaquin is a LAPD police officer who at times worked under Sergeant James Sands. A dispute arose between Joaquin and Sands, acting as Joaquin's watch commander, as to whether Joaquin had completed his work shift. Sands eventually directed disciplinary measures. Joaquin perceived Sands' actions as retaliation against Joaquin's rebuff of what Joaquin claimed were Sands sexual advances. Internal Affairs (IA) investigations found Joaquin's allegations unfounded.

Sands then lodged with IA his own complaint against Joaquin (for making false statements), resulting in proceedings before the Board of Rights, which put Joaquin's promotion to sergeant on hold.and temporarily relieved him of his duties. The Board found Joaquin guilty of misconduct concluding he retaliated against Sands by initiating a false complaint, resulting in 2006 in Joaquin's termination. As a result of writ proceedings, Joaquin succeeded in gaining reinstatement in 2009.

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HOSPITAL HAS NO DUTY TO DIRECTLY REPORT RESULTS TO PATIENT WHEN PERFORMING TESTING ORDERED BY DOCTOR

Hospital.jpgIn Walker v. Sonora Regional Medical Center (filed January 12, 2012) 2012 DJDAR 553, Amber Walker engaged the services of her personal physician, Dr. Teel, for pregnancy care. Among the prenatal laboratory tests that Dr. Teel ordered was a cystic fibrosis screening test to detect her genetic predisposition of having a child with cystic fibrosis. She went to Sonora Regional Medical Center (Hospital) where she had a blood specimen taken which was sent to a Salt Lake City laboratory that did the genetic testing; that laboratory then sent the results back to Hospital and Hospital promptly transmitted the results to Dr. Teel, who personally reviewed the results, which stated that Amber was a carrier of cystic fibrosis. Dr, Teel made a notation on the lab report to review with the patient, but he never did. Amber suffered a miscarriage.

Several months later, Amber was again pregnant and returned to Dr. Teel's office for eleven prenatal visits over the next 7 months. No mention was ever made of her previous cystic fibrosis test results. Amber declined to undergo another cystic fibrosis test, apparently believing that silence from the doctor's office on the subject meant her results were negative. Amber gave birth to a daughter, Payton, who was later diagnosed with cystic fibrosis.

The Walkers sued various defendants, including Hospital, on theories of negligence. Hospital moved in the trial court for summary judgment, primarily on the ground it had no duty to directly notify Amber of the lab results; its sole duty was to notify Dr. Teel, who was then to contact the patient. The trial court agreed, granting the motion. The Court of Appeal, Fifth Appellate District, affirmed.

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Product liability limited to injury caused by defendant's own product or loss directly caused by that product's use

product_087.jpgThe California Supreme Court is widely credited as the originator of strict product liability as a means of tort recovery for its pronouncement in Greenman v Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62: "A manufacturer is strictly liable in tort when an article he places into the market, knowing that it is to be used without inspection for defects, proves to have a defect that caused injury to a human being." Soon thereafter the theory was expanded such that strict liability encompassed even those injuries traceable to a defective component part that was supplied by someone other than the defendant manufacturer of the finished product. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262.)

In O'Neil v. Crane Co.(filed January 12, 2012) 2012 DJDAR 464, the current state high court was asked to extend liability for the harm caused by replacement parts, made by someone other than the defendant manufacturer, that were used in conjunction with (rather than as component parts of) defendant's product. In a unanimous decision, the Supreme Court decided to limit a manufacturer's duty to foresee such harm unless the defendant's own product contributed substantial harm or the defendant participated substantially in creating a harmful combined use of the products.

Defendants Crane and Warren (Warren Pumps, LLC) made valves and pumps respectively that were used in US Navy warships according to government specifications. Gaskets and packaging materials were used as sealants for defendant's products; based on Navy specifications, these sealant materials were made of asbestos and replaced during routine maintenance. Patrick O'Neil served on a ship that contained these products from 1965 to 1967. While supervising enlisted men repairing ship equipment, he was exposed to airborne asbestos fibers that were released during the repair of valves and pumps manufactured by defendants. However, none of the asbestos dust came from defendant's products. In 2004, O'Neil developed mesothelioma, causing his death about one year later. Family of O'Neil filed this wrongful death action raising strict liability and negligence claims.

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Employment discrimination lawsuit brought by "called" teacher barred by ministerial exception under 1st Amendment freedom of religion

teacher.jpgThe Untied States Supreme Court has weighed in for the first time on the question of whether church ministers are exempt from the protection of employment discrimination statutes. In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (filed Jan.10 2012) 2012 DJDAR 374, it concludes the First Amendment's Establishment and Free Exercise Clauses strike a balance between one's employment rights and "the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission;" acting as a bar to lawsuits under such statutes. The fact the High Court unanimously so ruled is not surprising. What appear to concern some commentators (see Daily Journal guest column of January 19, 2012 by Dean Erwin Chemerinsky) is that the specific facts of Hosanna-Tabor involved a person who was primarily an elementary school teacher at the private religious school operated by the church.

Cheryl Perich started as a lay teacher at the school in 1999. By the end of that first school year, she completed religious training that qualified her for a diploma and caused the school/church to call her as a commissioned minister of the church. She continued to teach secular subjects, and in addition taught a religious class 4 days a week and led chapel services twice a year.

In 2004, Perich took medical leave due to narcolepsy, at which time she was replaced by a lay teacher. Later in the school year, upon her notifying the school principal her condition had improved allowing her to return to work, the school administrators advised the church congregation she was unlikely to be physically able to perform her duties for 2 years; the congregation voted her a "peaceful release" from her call, that she would be deemed to have resigned in exchange for the church maintaining a portion of her health care premium. When Perich refused to accept these terms, she was terminated for insubordination. Perich complained to EEOC, which filed a law suit on her behalf.

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