Unanimous Defense Verdict Harper-Thornton vs. Poway Unified School District

A unanimous defense verdict was rendered on January 22, 2013, in Josephine Harper-Thornton v. Poway Unified School District No. 37-2011-00087193-CU-WT-CT (Superior Court, Judge John S. Meyer). Congratulations to Partner Daniel Shinoff, Associate Jeanne Blumenfeld and the Stutz litigation team for successfully defending the District against claims of Disability Discrimination, Hostile Work Environment/Harassment, Failure To Accommodate, and Failure To Engage In The Interactive Process (Gov. Code §12940 et seq.); and Intentional Infliction Of Emotional Distress.

Facts & Allegations:

In January 2011, plaintiff Josephine Harper-Thornton, a black female, and a Special Education Instructional Assistant II for the Poway Unified School District (“District”), was terminated from her position because the District could not reasonably accommodate the permanent work restrictions she received from a workers’ compensation injury.

Plaintiff sued the District for disability discrimination under the California Government Code §12940 (a); hostile work environment/harassment under California Government Code §12940 (j); failure to accommodate under the California Government Code §12940 (m); failure to engage in the interactive process, under the California Government Code §12940 (n) and intentional infliction of emotional distress. Plaintiff withdrew her claim for Intentional Infliction of Emotional Distress during the trial and the court dismissed this cause of action.


Plaintiff was a permanent classified employee of the Poway Unified School District (“District”). She was a one-on-one aide to severely disabled students. In July 2008, the District reassigned her to another school in the district because the student she had been assigned to no longer required an aide. Plaintiff informed the District that she would not go to the new assignment because it did not suit her. On August 11, 2008, Plaintiff allegedly sustained soft tissue knee and shoulder injuries in a slip and fall incident while she was volunteering at the school during summer vacation before the start of the new school year. She filed a worker’s compensation claim for this injury. On August 20, 2008, when the school year started, Plaintiff did not appear at work and did not call in to report her absence. Plaintiff began a pattern of leaving work early or failing to come to work, which continued for the remainder of the school year and the following school year.

Plaintiff’s workers’ compensation physician, Dr. Bradley Chesler, believed she was capable of doing her job with restrictions that included not lifting more than 5 pounds with her left arm and no bending and twisting. Plaintiff attempted to secure additional restrictions for the same injury, from her personal physician, which included a limit of working three hours per day only in the morning. In April 2009, Dr. Chesler declined to give her further restrictions without a Qualified Medical Evaluation, as he could find no objective manifestations of Plaintiff’s complaints. Plaintiff did not participate in a Qualified Medical Evaluation and she retained another workers’ compensation physician, Dr. Jeffrey Bernicker. In February 2010, Dr. Bernicker gave Plaintiff permanent work restrictions that “precluded [her] from very heavy lifting and from contact with combative/aggressive children”, and he determined that she could not return to her previous assignment without the risk of further injury. The District began the process to determine whether it could accommodate Plaintiff’s permanent restrictions.

On July 23, 2010, Dr. Bernicker, issued a Supplemental Report, after he had reviewed a Job Analysis which was conducted at his request. The Supplemental Report stated that Plaintiff could “return to her usual and customary position without representing a significant risk of reinjury.”

On July 27, 2010 Dr. Bernicker issued a Revised Report following the District’s request for clarification, in which he opined that “the job duties of the patient’s position as an Instructional Assistant II for Special Education students by definition mandates that she come in contact with potentially disruptive/aggressive children. Given that there is no way to protect the patient from the possibility of additional injury should she return to the original occupation which led to her injury in the first place, it is now my amended position (actually, the reaffirmed position) that this position is not suitable for Plaintiff as currently constituted.”

The District contended that it engaged in a very extensive good-faith interactive process and, after considering all available options, it determined that Plaintiff was unable to perform the essential functions of her job, even with accommodations. The District terminated Plaintiff’s employment in January 2011, because it could not accommodate her work restrictions.