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A Civil Suit No. 2636 of 1987 was filed by the appellant-Bank before the High Court of Judicature at Bombay against the respondent on 07.09.1987 for recovery of Rs.69,50,213.59 with interest @ 18.5% p.a. with quarterly rests and enforcement of the mortgage. The High Court vide its order dated 09.12.1996 passed a consent decree in the Civil Suit for the suit amount together with concessional rate of interest at 12% p.a. which was to be paid by the respondent to the Bank on or before 31.05.1997. On 31.05.1997, the respondent tendered the amount in terms of the decree dated 09.12.1996, which was refused by the appellant. The respondent moved Chamber Summons No.1066 of 1997, inter alia, for recording the payment of decreetal amount tendered on 31.05.1997.
On 01.08.1997, the respondent applied for ad interim relief in terms of the above Chamber Summons. However, by the order dated 01.08.1997, the High Court was pleased to decline to grant ad interim relief but adjourned the said Chamber Summons for recording evidence to establish the fact that the respondent had tendered the payment of the decreetal amount on or before 31.05.1997. Being aggrieved by the same, the respondent preferred Appeal No.960 of 1997 before the Division Bench of the High Court. By an order dated 05.12.1997, the said appeal was dismissed and the S.L.P filed by the respondent was also dismissed by this Court on 23.03.1998.
Thereafter, the High Court directed the Court Receiver by its order dated 03.12.1999, to sell the mortgaged property of the respondent and permitted the appellant-Bank to participate in the auction, and the Court Receiver issued notices for auctioning the mortgaged property. The auction was held on 06.05.2000 at which the appellant-Bank purchased the mortgaged property for Rs.2,00,00,000/-, the sale of which was approved by the High Court vide its order dated 21.07.2000. The Court Receiver issued the Sale Certificate on 18.4.2002 and the same was registered in the name of the appellant-Bank. Thereafter, a series of applications and proceedings were initiated by the respondent before the DRT, DRAT and different High Courts and Civil Courts seeking various reliefs against the appellant-Bank.
After the period of 7 years of the issuance of the recovery certificate in favour of the appellant-Bank, the respondent moved a Misc. application before the Recovery Officer to set aside the sale of the mortgaged property which was dismissed on 2.12.2011 by DRT-II, Mumbai. The respondent moved an application for rectification of recovery certificate dated 29.11.2004 along with an application for condonation of delay in filing the Misc. application for rectification of recovery certificate dated 29.11.2004 and an application seeking interim orders in respect of the property which was sold in the public auction by the Court Receiver. The DRT dismissed the interim application by its order dated 30.01.2012.
The DRT-II further rejected the condonation of delay application filed by the respondent by its order dated 22.02.2012.
The respondent aggrieved by the above said order filed an appeal before the DRAT and the same was dismissed vide order dated 10.04.2012. The respondent further chose to challenge the order of DRAT before the High Court in W.P.No.3652 of 2012 urging various grounds and prayed to quash the same and pass appropriate order in the light of the facts and circumstances of the case.
On 29.8.2012, the High Court after hearing the learned counsel for the parties has allowed the writ petition by setting aside the orders of the DRT and the DRAT and condoned the delay in filing Misc. Application (L) No. 34 of 2012 filed by the respondent and restored the Misc. application filed by him before the DRT-II, Mumbai to its file and directed it to decide the same on its own merits in accordance with law afresh in the light of the law declared by this Court and the High Court on the subject matter.
As the issue before us is with regard to the condonation of delay in filing the Misc. Application by the respondent and allowing the same in the writ petition filed by the respondent which is under challenge in this appeal at the instance of the appellant-Bank by urging various legal grounds, we will deal with this aspect of the case only, in this judgment. On 25.01.2012, the respondent filed Misc. Application (L) No.34 of 2012 before DRT-II, Mumbai for avoiding the sale and seeking rectification of Recovery Certificate and decree dated 9.12.1996, passed by the High Court.
The filing of that Misc. application was delayed by 23 days. Therefore, the respondent filed Misc. Application No. 7 of 2012 for condonation of delay in filing the Misc. Application(L) No.34 of 2012 before the DRT-II, which application was dismissed by its order dated 22.02.2012, by declining to exercise its discretionary power to condone the delay in filing such Misc. application by the respondent. Being aggrieved of the said order, the respondent filed Misc. Appeal No. 35 of 2012 before the DRAT questioning the correctness of the above order and prayed to set aside the same and allow the application by condoning the delay in filing that application before the DRT.
The DRAT vide its order dated 10.4.2012 dismissed the appeal holding that the same is barred by limitation and no proper and satisfactory explanation was assigned by the respondent. Being aggrieved of the same, the respondent approached the High Court by filing Writ Petition No.3652 of 2012 questioning the correctness of the order dated 10.04.2012 passed by the DRAT urging various grounds with a prayer to set aside the above said order.
The High Court after hearing the parties vide its order dated 29.08.2012 has held that the order passed by the DRT-II in dismissing the application of the respondent without deciding the issue i.e. whether the public auction of the sale of the mortgaged property conducted by the Court Receiver as per the direction of the High Court, after the execution proceedings initiated by the appellant-Bank against the respondent stood transferred to the DRT in view of Section 31 of DRT Act as the DRT came into existence on 16.07.1999, as per the notification issued by the Central Government, is not legal and valid in law.
The sale of the property of the respondent has affected his rights as the same is in contravention of the provisions of the DRT Act and the relevant rules applicable for sale of the property which go to the root of the matter and therefore, he has prayed to set aside the order dated 10.04.2012 passed by the DRAT along with the order passed by the DRT on the Misc. Application No.7 of 2012 seeking for condonation of delay in filing Misc. Application(L) No.34 of 2012 and requested to restore the same to its original file of the DRT, Mumbai and also further directed it to decide the same on its own merits keeping in view the law declared by the High Court as well as this Court.
The appellant-Bank was aggrieved by the above said judgment and order it has filed this appeal questioning the correctness of the same by urging various grounds in support of its case. The learned Solicitor General Mr. Ranjit Kumar appearing on behalf of the appellant and Mr. Rafeeq P., the learned counsel appearing on behalf of the respondent, have made elaborate submissions in support of the respective claim and counter claim of the parties.
The learned Solicitor General has placed reliance upon Article 127 of the Schedule of Part I of the Limitation Act, 1963, in support of his contention that the period of 60 days is prescribed in Limitation Act, 1963 for filing Misc. application and a period of one year under Article 99 of the Schedule of Part IX of the said Act is stipulated for filing a suit from the date of sale of the property for setting aside the order of the sale of the mortgaged property. He submits that the provisions of the Limitation Act are applicable to the DRT proceedings as well, in view of the relevant provisions of Section 24 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 (for short "the Act of 1993").
The learned Solicitor General has made submission that the orders of the DRT and DRAT in dismissing the condonation of delay application and consequently, the Miscellaneous application are erroneously set aside in the impugned judgment and order passed by the High Court as they are barred by limitation under the aforesaid Articles of the Schedule referred to supra as the said applications are filed beyond the prescribed period of limitation under the aforesaid provisions of the Limitation Act.
In support of his submissions, he has placed reliance upon the Constitution Bench judgment of this Court in Dadi Jagannadham v. Jammulu Ramulu & Ors. which decision is followed by this Court in another case viz. Annapurna v. Mallikarjun & Anr.. He has further contended that the decree was passed by the Bombay High Court in the original suit proceedings way back on 9.12.1996 in favour of the appellant-Bank against the respondent for recovery of the debt amount due from him.
The sale of the property of the respondent was conducted by the Court Receiver, who was appointed by the High Court in the execution proceedings initiated by the appellant-Bank by issuing notices on 08.09.1998 and 07.12.1998 for conducting the sale in public auction of the said mortgaged property of the respondent. The DRT, Mumbai was established on 16.07.1999 pursuant to the notification issued by the Central Government under the provisions of the Act of 1993. Further, it has been contended by him that although, the DRT was empowered to appoint the Court Receiver for conducting the sale of the mortgaged property in public auction, there was no adequate infrastructure provided by the Central Government to the DRT to take possession and charge of the properties from the Court Receiver of the High Court at the time the property was ordered to be sold in public auction by the Court Receiver.
The jurisdiction of the High Court with regard to the recovery of debt has been transferred to the DRT in view of Section 31 of the DRT Act with effect from 16.7.1999, it was not in a position to take possession of the mortgaged properties from the Court Receiver of the High Court and manage the same as there was no infrastructure provided to it by the Central Government. Since the above assets which were in custody and possession of the Court Receiver in respect of which securities were created in favour of the banks and financial institutions and therefore, the same should not have been permitted to be dissipated by the High Court and therefore, the High Court has rightly permitted the Court Receiver to sell the mortgaged property of the respondent in public auction pursuant to the decree passed by it in favour of the appellant-Bank.
Further, it is contended by the learned Solicitor General that the power conferred upon the High Court, under Article 227 of the Constitution of India is exercised by it even after the DRT was established permitting the Court Receiver of the High Court to conduct the sale of the property of respondent in public auction to recover the decreetal money in favour of the appellant-Bank in terms of the judgment and decree passed by it for the reason the DRT had no infrastructure to receive the possession of the property from Court Receiver and sell the same. Therefore, he has submitted that the High Court could not have found fault with its earlier order in permitting the Court Receiver to sell the mortgaged property in public auction to recover the decreetal amount by the Bank by way of sale of the mortgaged property.
The learned Solicitor General has further contended that the mortgaged property sold by the Court Receiver in the public auction as per the order passed by the Bombay High Court, could not have been interfered with by the DRT-II and the DRAT on the Misc. application filed by the respondent along with the condonation of delay application. Therefore, he has submitted that the impugned order passed by the High Court is liable to be set aside in this appeal as the same is not in accordance with law.
It has been further contended by him that the order dated 3.12.1999 passed by the learned Single Judge of the High Court of Bombay directing the Court Receiver to proceed with the sale of the mortgaged property of the respondent in the execution proceedings pursuant to the decree passed by it with the respondent's consent and therefore, it is not permissible for him at the belated stage to turn around and contend that the execution of the decree and sale of the property by the Court Receiver in the public auction is not legal and valid.
Further, the High Court has exercised its power in issuing the direction to the Court Receiver for conducting the sale of the property through public auction on the basis of the judgment of Bombay High Court in the case of Industrial Credit & Investment Corporation of India Ltd. v. Patheja Brothers Forgings And Stampings Ltd. & Ors. in which it has examined the provisions of Section 3 of the Act of 1993, wherein it has held that after 16.7.1999, in several proceedings, the parties have challenged the power of the Court Receiver to manage the properties in view of the DRT Act and therefore, the Court Receiver had no authority to act in the matter. The High Court held that the Court Receiver, who is appointed prior to the cut-off date and pending proceedings before the High Court stands transferred to the DRT by virtue of the provision under Section 31 of the DRT Act as he had the power to sell the properties.
It is urged by him that it has been held by the High Court in the above referred case that there is no question of conducting de novo proceedings. It is submitted by him that in view of the above said statement of law laid down by the Bombay High Court it has passed an order dated 03.12.1999 in exercise of its power traceable to Article 227 of the Constitution of India, in the execution proceedings, wherein it has directed the Court Receiver to take steps to recover the decreetal amount from the respondent by selling the mortgaged property in public auction and therefore, the same cannot be interfered with by the DRT in the Misc. Applications filed by the respondent.
On the other hand, it has been contended by the learned counsel on behalf of the respondent that the Court Receiver had no jurisdiction to sell the property by way of execution of the decree after the DRT has come into existence by placing the reliance upon the above case.
It has been further contended by him that the suit proceedings of the Bank stood transferred automatically to the DRT by operation of law. Further, reliance was also placed by him on behalf of the respondent upon the case of Raghunath Rai Bareja & Anr. v. Punjab National Bank & Ors. in support of his legal contention that in view of Section 31 of the DRT Act, the Court Receiver had no jurisdiction to sell the mortgaged property by way of execution of the decree in the public auction as directed by the High Court after the DRT was established by way of notification, pursuant to the DRT Act. Thus, even if the direction was given by the Bombay High Court to the Court Receiver, to execute the decree and sell the mortgaged property, he should not have executed the same in view of Section 31 of the DRT Act, as the execution proceedings were automatically transferred to the DRT.
Therefore, the learned counsel on behalf of the respondent has contended that the order dated 03.12.1999 passed by the High Court in directing the Court Receiver to proceed with the sale of the mortgaged property in execution of the order/decree dated 09.12.1996 is null and void ab initio in law and therefore, the same is wholly unsustainable in law. He has placed reliance upon the cases of this Court which will be adverted in the later portion of the judgment that the question of limitation does not arise at all in fling application for setting aside the sale as the same is vitiated and void ab initio in law.
The said rival legal contentions are examined by us very carefully with a view to find out as to whether the impugned judgment and order warrant interference keeping in view the interpretation of the provisions of the DRT Act and the constitutional validity of the Act of 1993, which has been upheld by this Court in the case of George v. State of Kerala and the other decisions of this Court referred to supra upon which reliance is placed by the learned counsel on behalf of the respondent.
The learned Solicitor General appearing for the appellant has placed reliance on the following judgments of this Court, upon which the High Court has relied viz. State Bank of Bikaner & Jaipur v. Ballabh Das & Co. & Ors. and Punjab National Bank, Dasuya v. Chajju Ram & Ors. in holding that the High Court has no jurisdiction to pass orders and give directions to the Court Receiver for sale of the property in public auction after the establishment of the DRT Act. He has submitted that the said decisions are distinguishable from the facts of this case that the properties alongwith the property of the respondent were in possession and custody of the Court Receiver and the same could not have been transferred by him to the DRT for want of infrastructure, to be provided by the Central Government to it after it was established.
"9. ......As the suits were filed by the Bank before establishment of the Tribunal and were pending in the civil court when the Tribunal came to be established under the Act, Section 31 became applicable to those suits and they shall have to be treated as transferred to the Tribunal on and from the date the Tribunal was established. Section 31 of the Act makes it clear that the transfer is automatic because of the operation of law and, therefore, the Bank was really not required to file applications.
Those applications should have been really treated as applications for forwarding the records of the suits to the Tribunal...."
"7. Learned counsel for the respondents submitted that the use of the words "cause of action" in Section 31 indicated that it is only pending suits which could be tr[pic]ansferred. We are unable to agree with this submission. The words "cause of action" are preceded by the words "being a suit or proceeding". Section 31 contemplates not only the transfer of a suit but also transfer of a proceeding which may be other than a suit, like an execution application........"
In view of the law laid down by this Court in the above cases upon which strong reliance is placed by the learned counsel for the respondent, the submission made by the learned Solicitor General to distinguish the same on facts cannot be accepted by us as the same is contrary to the law laid down by this Court.
The other contention of the learned Solicitor General that the sale of the mortgaged property made by the Court Receiver in favour of the appellant- Bank by way of execution of the decree dated 09.12.1996 passed by the High Court and issuance of the sale certificate in favour of the appellant-Bank and handing over of the possession of the schedule property to it on 08.08.2000, and the Miscellaneous Application filed by the respondent before the DRT seeking the relief as stated above, cannot be entertained and accepted by us in view of the above referred cases upon which strong reliance placed by the learned counsel on behalf of the respondent.
The contention urged on the question of limitation by the learned Solicitor General on behalf of the appellant-Bank placing reliance upon the decisions of this Court in the cases of Dadi Jagannadham and Annapurna (supra) are wholly inapplicable to the fact situation of the case on hand in view of the decision of the three Judge Bench judgment of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra.
In this case, this Court has dealt with regard to the Limitation Act, in exercise of its power under Article 136 of the Constitution after examining the fact situation in the above said case in support of the proposition of law that a decree, which is passed by the court without jurisdiction is a nullity in the eye of law and the same cannot be allowed to operate and such decree is executed during pendency of the Special Leave Petition before this Court, in such cases it would grant relief to the aggrieved party, who has suffered from injustice by setting aside the execution order and further held that defect of jurisdiction of the court cannot be cured by consent or waiver of the parties.
In the said case this Court has elaborately considered the relevant factual and legal aspect of the case and has laid down the law at paragraph 10, after referring to its earlier decision of a Four Judge Bench of this Court speaking through Venkatarama Ayyar, J. in Kiran Singh v. Chaman Paswan (1955) 1 SCR 117, which would be worthwhile to be extracted as under:- "10.......It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities."
"16. In Ledgard v. Bull, (1886) 11 App Cas 648, the Privy Council laid down that where the original court in a suit was inherently lacking jurisdiction, and was incompetent to try the same, on its transfer by consent of parties, to a court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction.
17. In Barton v. Fincham, (1921) 2 KB 291, 299, wherein it was held that: "... the court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act." In view of the aforesaid legal principle laid down by this Court after referring to its earlier decision, Privy Council judgment and also the Kings Bench decision, we are of the view that the decree which is sought to be executed by the Court Receiver as per the order dated 3.12.1999 passed by the High Court, giving directions to him to sell the mortgaged property of the respondent in the execution proceedings of the decree and the subsequent proceedings of the Court Receiver, including the confirmation of the sale and the issuance of the sale certificate in favour of the appellant-Bank is void ab initio in law.
In view of the law laid down by this Court in the cases referred to supra, the contentions urged by the learned Solicitor General on behalf of the appellant-Bank cannot be accepted and therefore, we have to hold that the impugned judgment and order cannot be interfered with by this Court. We are of the view that the High Court has rightly found fault with the DRT and DRAT in rejecting the Misc. Application filed by the respondent, who has sought for rectification of the recovery certificate filed by him.
Therefore, the High Court has rightly rejected the same after adverting to the judgments in the cases of State Bank of Bikaner & Jaipur v. Ballabh Das & Co. & Ors. (supra) and Punjab National Bank, Dasuya v. Chajju Ram & Ors. (supra). The exercise of jurisdiction by the High Court for giving the direction to the Court Receiver to sell the mortgaged property even after the DRT was established at Mumbai and in view of the fact that the proceedings before the High Court were automatically transferred to it in view of Section 31 of the DRT Act and therefore it was impermissible in law for the High Court to direct the Court Receiver to sell the property of the respondent in public auction by executing the Court decree, which action of the Court Receiver is void ab initio in law.
Therefore, the order of the DRT and the DRAT, in dismissing the condonation of delay application by the respondent holding that the same is barred by limitation and consequently dismissing Misc. Application to set aside the sale is untenable in law and therefore, the High Court has rightly answered the legal contentions in favour of the respondent by giving valid and cogent reasons in the impugned judgment in exercise of its Judicial Review power. The provisions of the Limitation Act are applicable to the proceedings of the DRT in view of Section 24 of the Act of 1993 and therefore, the provisions of Section 5 of the Limitation Act are applicable to the provisions of the said Act. The same has not been examined and considered by the DRT-II and the DRAT at the time of passing the impugned orders in the writ petitions.
Therefore, the High Court has rightly exercised its discretionary power keeping in view the rights of the respondent upon the immovable property involved in this case and it has condoned the delay in filing Misc. Application and accordingly the orders of the DRT-II and the DRAT impugned in the writ petition are set aside by allowing the same. In view of the foregoing reasons, the legal contentions urged on behalf of the appellant-Bank have no substance in the matter for the reason that the recovery certificate issued on 29.11.2004, was sought to be modified by the appellant-Bank itself by filing an application before the DRT-II and the same has not been modified, which is another strong ground for the respondent to file Misc. application for the cancellation of the sale of the property in favour of the appellant-Bank, along with condonation of delay application urging tenable grounds.
The issue raised by the respondent in the present case strikes at the very authority of the High Court in permitting the Court Receiver by its order dated 3.12.1999 to auction the mortgaged property of the respondent in public auction pursuant to the decree passed by the High Court in favour of the appellant-Bank. The above said important aspect of the case is required to be examined and considered by the DRT-II in the Miscellaneous application which is remitted back to it in the impugned judgment of the High Court. Further, we make it clear that we have recorded our reasons in this judgment on the basis of the rival legal contentions urged on behalf of the parties.
Nonetheless, the DRT-II is required to examine the Miscellaneous application of the respondent independently on its own merit and in accordance with law without being influenced by our observations made in this judgment. For the above stated reasons, the impugned judgment and order passed by the High Court by setting aside the orders of DRT-II and DRAT and further remanding the matter to DRT-II for its re-consideration of the Miscellaneous application, is in accordance with the provisions of the Act and the law laid down by this Court in this regard and the same cannot be found fault with by this Court. Hence, there is no merit in this appeal, and the same is liable to be dismissed. Accordingly, the appeal is dismissed with costs of Rs.1,00,000/- payable to the respondent. The parties are directed to maintain status quo of the property involved in these proceedings which exists as on today till the disposal of the Miscellaneous Application by the DRT-II.
Mr. Praveen Swarup,Adv. Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan. Leave granted. The appeal is dismissed in terms of the signed Non-reportable Judgment.

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The Holder of the treatment is NICO SRL with legal center in Via Giacinto Collegno 46bis. 10138 Turin.

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On October 14, 2011, the New Mexico Supreme Court consolidated all redistricting litigation in the 1st Judicial District Court, in Santa Fe. That court has drawn congressional lines, and lines for the state Senate and state House. The state House lines have been appealed, and reversed, with instructions for the trial court to redraw the lines; that decision has itself been challenged in federal court.
Egolf v. Duran, No. D-101-cv-201102942 (N.M. 1st Judicial Dist. Ct.): all of the litigation challenging New Mexico districts was consolidated under this case.
- Maestas et al. motion for partial summary judgment (Nov. 22), reply (Dec. 8).
- Proposed findings of fact by Maestas et al. (Nov. 28), NM LULAC (Dec. 5).
- Maestas et al. (Dec. 2), exec. defs. (omnibus (Nov. 10) & specific (Dec. 2)).
- joint plan proponents (exec. defs., Egolf et al., Sena et al., James et al.) (Dec. 2).
- legislative defendants (exhs. A, B, C) (Dec. 9).
- intervenors Navajo Nation et al. (exhs. A and B) (Dec. 2), NM LULAC (Dec. 4).
- Maestas et al., executive defendants et al. (Dec. 9), Egolf et al. (Dec. 27).
- intervenors Navajo Nation et al., intervenors NM LULAC (Dec. 9).
- exec. defs. et al., Sena et al. (Dec. 9), Egolf et al., Maestas et al. (Dec. 27).
- Opinion drawing congressional districts (Dec. 29).
The latest: Trial began on congressional districts December 5. On December 29, the court issued a congressional plan, preserving the vast majority of the existing districts and finding no need to depart from those districts under the Voting Rights Act.
James v. Duran, No. D-202-CV-201109600 (N.M. 2d Judicial Dist. Ct.): a challenge in state court to the recent redistricting.
The latest The complaint was filed on September 25, 2011. On October 14, this case was consolidated with Egolf v. Duran, above.
Holguin v. Duran, No. D-101-cv-201102944 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the congressional redistricting.
The latest: The complaint was filed on September 26, 2011. On October 14, this case was consolidated with Egolf v. Duran, above.
Sena v. Duran, No. D-506-cv-201100913 (N.M. 5th Judicial Dist. Ct.): a challenge in state court to the state and federal redistricting, based on malapportionment and violations of the Voting Rights Act given the legislature's failure to pass new plans.
Maestas v. Duran II, No. D-101-cv-201103099 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to congressional redistricting.
The latest: The complaint was filed on October 7, 2011. On October 14, this case was consolidated with Egolf v. Duran, above.
Chavez-Hankins v. Duran, No. 1:12-cv-00140 (D.N.M.): a challenge in federal court to the state Supreme Court's order remanding consideration of the state House districts to the state trial court, alleging equal population violations and racial gerrymandering.
- Complaint (Feb. 13, 2012).
- Intervenor Navajo Nation et al. complaint (Feb. 21).
- Briefs re jurisdiction by plaintiffs, Maestas et al., defendants (Feb. 22).
- Response by plaintiffs, Egolf et al., Jennings et al., Maestas et al., State (Feb. 24).
- Briefs re delaying election deadlines by Egolf et al., defendants (Feb. 23).
- Response by plaintiffs, Egolf et al., Jennings et al. (Feb. 24).
- Briefs re constitutionality of Sup. Ct. remand, by plaintiffs, defendants (Feb. 23).
- Responses by Egolf et al., Jennings et al., State (Feb. 27).
- Motion to dismiss by intervenors Jennings et al., Egolf et al. (Feb. 22).
- Order to show cause why suit should not be dismissed (Mar. 23).
- Stipulation of dismissal (Apr. 13).
The latest: On April 13, the parties agreed to dismiss the case.
Maestas v. Hall, No. 12-33386 (N.M. Sup. Ct.), and Jennings v. New Mexico Court of Appeals, No. 12-33387 (N.M. Sup. Ct.) are the cases arising out of petitions asking the New Mexico Supreme Court to assume control of the appeal.
- Egolf et al., Maestas et al., James et al., Pueblo of Laguna et al. (Dec. 9).
- executive defendants (omnibus (Nov. 10) & specific (Dec. 9)).
- Egolf et al., Maestas et al., James et al., Pueblo of Laguna et al. (Dec. 28).
- executive defendants, legislative defendants (Dec. 28).
- intervenors Navajo Nation et al. (Dec. 28).
- Opinion drawing state House districts (Jan. 3).
- Petition for superintending control by Jennings-Lujan, Maestas-Egolf (Jan. 17).
- Stay of judgment pending appeal (Jan. 18).
- Egolf et al., Maestas et al., James et al., Pueblo of Laguna et al. (Jan. 27).
- Sena et al., executive defendants (I, II), legislative defendants (Jan. 27).
- intervenors Navajo Nation et al. (Jan. 27).
- Egolf et al., James et al./exec. defs. (Jan. 31).
- executive defendants, legislative defendants (Jan. 31).
- intervenors Navajo Nation et al. (Jan. 31).
- Order reversing and remanding (Feb. 10) and explanatory opinion (Feb. 21).
- Proposed post-remand plans (1, 2).
- Egolf et al., James et al., Pueblo of Laguna et al., Sena et al. (Feb. 15).
- executive defendants, legislative defendants (Feb. 15).
The latest: Trial began on the state House districts on December 12. On January 3, the court issued a state House plan, focused on minimizing population deviation, and drawing districts to allow Native Americans an effective opportunity to elect candidates of choice under the Voting Rights Act. The court found no need, under the totality of circumstances, to draw maps specifically protecting Hispanic voters under the Voting Rights Act.
The decision was appealed to the state Supreme Court, which reversed on February 10. The state Supreme Court asked the trial court to reconsider the extent to which mildly larger population deviations would satisfy other state redistricting criteria, to reconsider the partisan impact and incumbent pairings of a court-ordered plan, and to recognize a district protecting Hispanic voters in the Clovis area under the Voting Rights Act. On February 27, the trial court issued a new state House plan.
Castro v. Duran, No. D-101-cv-201102945 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the state House redistricting.
Pueblo of Laguna v. Duran, No. D-101-cv-201103016 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the state legislative districts.
- Original (Sept. 29, 2011), 1st (Oct. 19), and 2d amended complaint (Oct. 21).
The latest: The complaint was filed on September 29, 2011. On October 14, this case was consolidated with Egolf v. Duran, above.
Maestas v. Duran, No. D-101-cv-201103107 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the redistricting of the state House.
Egolf v. Duran, No. D-101-cv-201102942 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the redistricting of the state Senate.
- Egolf complaint (Sept. 26, 2011).
- Intervenors Navajo Nation et al. complaint (Oct. 25), amd. complaint (Oct. 28).
- Pueblo of Laguna et al. (Dec. 30), James et al. (Dec. 31).
- joint plan proponents (exec. defs., Egolf et al., Sena et al., James et al.) (Dec. 30).
- executive defendants, legislative defendants (Dec. 30).
- intervenors Navajo Nation et al. (Dec. 30).
- Egolf and Maestas et al., James et al., Pueblo of Laguna et al. (Dec. 30).
- executive defendants (omnibus (Nov. 10) & specific (Dec. 30)).
- legislative defendants (exhs. A, B, C) (Dec. 9) & specific (Dec. 30)).
- Opinion drawing state Senate districts (Jan. 16).
The latest: Trial began on the state Senate districts on January 3, 2012. On January 16, the court issued a state Senate plan, focused on minimizing population deviation, and drawing districts to allow Native Americans an effective opportunity to elect candidates of choice under the Voting Rights Act. The court found no need, under the totality of circumstances, to draw maps specifically protecting Hispanic voters under the Voting Rights Act.
Maestas v. Duran III, No. D-101-cv-201103135 (N.M. 1st Judicial Dist. Ct.): a challenge in state court to the redistricting of the state Senate.
The latest: The complaint was filed on October 11, 2011, with an amended complaint filed October 14.

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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections ay be made before the bound volumes go to press.
RETIRMEENT AND RELIEF BOARD, RESPONDENT.
Rebecca L. Taylor, with whom Frederick A. Douglas and Michael M. Hicks, were on the briefs, for petitioner.
Martin B. White, Assistant Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief for respondent.
Before STEADMAN and SCHWELB, Associate Judges, and BELSON, Senior Judge.
BELSON, Senior Judge: Petitioner Mirinda Jackson appeals the determination of respondent District of Columbia Police and Firefighters Retirement and Relief Board ("Board") that she was not entitled to survivor annuity benefits under the Police and Firefighters Retirement and Disability Act ("the Act").1 The issue on appeal is whether petitioner, the widow of Burton F. Jackson, a retired United States Secret Service agent, waived her right to the survivor annuity under the Act by entering into a separation and property settlement agreement with her husband, whereby each party explicitly waived to the other any interests in the other's retirement plans, pensions, IRAs or similar interests. We conclude that the Board erred in finding that Ms. Jackson waived her rights to survivor annuity benefits and, accordingly, reverse and remand.
Burton F. Jackson was appointed to the United States Secret Service, Uniformed Division, on August 25, 1970. On March 5, 1976, he and petitioner married. Mr. Jackson retired from the Secret Service in 1990. In July 1994, he and petitioner entered into a separation and property settlement agreement. Mr. Jackson died on November 18, 1995. At the time, he and petitioner were still separated but had not divorced.
On January 16, 1996, Ms. Jackson submitted her application to the Board for survivor's benefits based on Mr. Jackson's former employment with the Secret Service. Without a hearing, the Board voted to deny her application on February 29, 1996, and issued a written decision to that effect on April 1, 1996, stating that pursuant to the separation agreement, Ms. Jackson "specifically waived her rights to her husband's pension." In re Mirinda Jackson, Police and Firefighters Retirement and Relief Bd. Case No. SS96-3020 (April 1, 1996).
Our review of an agency's action is deferential; "[w]e defer to an agency's interpretation of a statute or regulations it is responsible for enforcing as long as the interpretation is not plainly wrong or inconsistent with the legislature's intent." Downs v. District of Columbia Police and Firefighters Retirement & Relief Bd., 666 A.2d 860, 861 (D.C. 1995) (citations omitted). We must "defer to an administrative agency's findings of fact and affirm them if they are supported by substantial evidence in the record as a whole." 4934, Inc. v. District of Columbia Dep't of Employment Servs., 605 A.2d 50, 53 (D.C. 1992) (citations omitted). Nonetheless, we will "hold unlawful and set aside any [agency] action or findings and conclusions' not supported by substantial evidence." Breen v. District of Columbia Police and Firefighters Retirement & Relief Bd., 659 A.2d 1257, 1258 (D.C. 1995) (quoting D.C. Code §1-1510 (a)(3)(E) (1992 Repl.)). Guided by these principles, we turn now to the merits of this case.
In case of the death . . . of any former member after retirement . . ., leaving a widow or widower, such widow or widower shall be entitled to receive an annuity. . . .
Id. The term "member" in this section includes United States Secret Service agents of the Uniformed Division as defined by D.C. Code §4-607(1). Ms. Jackson contends that the Board erred in denying her annuity benefits pursuant to this section. The Board, however, maintains that the separation agreement Ms. Jackson entered into with her husband constituted a waiver of her annuity rights.
We find no fault with the Board's determination that the separation agreement was valid under Maryland law.4 See Frana v. Frana, 278 A.2d 94, 97 (Md. 1971). We disagree, however, with its determination that petitioner waived her §4-622(b) annuity right by entering into the separation agreement.
Each of the parties hereby now and forever waives to the other any and all interests, claims, or rights they may now or in the future have to any IRA; regular or military type retirement plans, pensions, 401K accounts, or other such interests which are in the name of the other party.
Given this provision, the decisive question is whether the §4-622(b) survivor annuity was a property interest of Mr. Jackson within the meaning of the separation agreement or was instead an inchoate property interest of the petitioner.
We are unable to find, nor do the parties cite, any case law or legislative history which deals specifically with whether a §4-622 survivor annuity was, before the employee's death, a property interest of the employee or, instead, an inchoate interest of the potential annuitant. Of some relevance, however, is our holding in Ashton v. Ashton, 117 A.2d 459 (D.C. 1955). There decedent was employed by the United States at the time of his death and there was a specific sum to his credit in the United States Civil Service Retirement Fund. The issue was whether that sum was an asset of decedent's estate. We held that "it is beyond question that the credit in the retirement fund was not an asset of decedent's estate." Id. at 460. We further noted that because the law automatically made the credit of the deceased employee available only for payment of an annuity to the widow as long as she lived, neither the deceased nor his estate had the power "by will, designation or otherwise, to dispose of th[e] credit." Id.
Case law from other jurisdictions also provides guidance as to whether a deceased, his estate, or his surviving spouse holds a property interest in a survivor annuity. In In re Estate of Bannon, 358 N.E.2d 215 (Ind. 1976), where the deceased had contracted with his company for his wife to receive an annuity upon his death, the Indiana Court of Appeals held that the decedent had no interest in the annuity which was payable to his widow, and therefore the annuity was not subject to inheritance tax. Id. at 217. "The payment was not a transfer from decedent, rather, it came directly from the corporation in response to a contract for valuable consideration." Id. (citations omitted). Moreover, once the decedent had entered into the employment agreement, he relinquished his interest in the annuity payable to his widow and could not thereafter take any action to affect her rights. Id. at 218. Similarly, in In re Marriage of Lipkin, 566 N.E.2d 972 (Ill. 1991), a divorce case, the Illinois court noted that a survivor's benefit was a separate and distinct property interest benefitting only the surviving spouse "subject to the contingency of survival." Id. at 975.
In the instant case, the above-quoted language of §4-622(b) plainly indicates that upon the happening of a contingency, the death of a former member after retirement, the surviving widow or widower shall automatically be entitled to annuity benefits directly from the District of Columbia.5 See Downs, supra, 666 A.2d at 861 (this court favors interpretations consistent with plain language of statute). The survivor annuity is in no sense a transfer from the decedent to the surviving spouse.
In addition, in the Retirement Plan prepared by the District of Columbia Retirement Board, the Survivors' Benefits section provides that while a surviving widow is automatically entitled to an annuity, a member (of the retirement plan) may elect to reduce his own pension during his lifetime in order to provide the survivor with additional support.6 This provision illustrates that survivor annuity benefits are different from a member's pension benefits, as it gives the member -- Mr. Jackson in this case -- the option of transferring additional funds to augment otherwise separately funded survivor annuity payments.
There is no language in the plan indicating that the member has the power to dispose of the survivor's annuity rights by will, assignment or otherwise.7 Thus, although it is true that Ms. Jackson's entitlement to the survivor annuity is a result of her husband's employment with the Secret Service, the annuity right was Ms. Jackson's rather than her husband's. She did not waive it by contracting with her husband to waive any claims, rights, or interests she may have had in any IRA, retirement plan, pension, 401K account, or other such interests that were his.
Consideration of the practical effects of the waiver resulting from reading the statute as the Board did gives further support to Ms. Jackson's position. If Ms. Jackson should be deprived of the survivor annuity, it would not benefit Mr. Jackson or his estate at all. The agreement speaks of each party's waiving an interest "to the other," but the Board's ruling would not accomplish that. It would give nothing to Mr. Jackson or his estate.
The overall import of the controlling provision of the separation agreement is that each signatory agreed to forsake any claim upon the retirement plan, pension, IRA or similar interests of the other spouse. That purpose would be served by denying any claim that Ms. Jackson might make on Mr. Jackson's pension or retirement rights, but it is not served by denying Mrs. Jackson her own spousal annuity.
Finally the agreement speaks of waiving claims to interests "in the name of the other party." While it is true, as the Board argues, that any survivor annuity was derived from the employment of Mr. Jackson, there is no record indication that the survivor annuity itself was "in the name" of Mr. Jackson, phraseology that is perhaps more descriptive of other specified interests such as a 401K account than of a survivor annuity.8 By its very nature a spousal survivor annuity is an inchoate interest belonging to a member's spouse, in this case Ms. Jackson.
In sum, we hold that the Board erred in finding that Ms. Jackson waived her rights to survivor annuity benefits. The waiver provision of the separation agreement applies to any claims Mr. Jackson had (or may have had) against property interests of Mr. Jackson of the type set forth in the agreement. It does not apply to the annuity to which she was entitled by virtue of Mr. Jackson's employment. Therefore, Ms. Jackson is entitled to receive the survivor annuity as of the date of eligibility pursuant to the Police and Firefighters Retirement and Disability Act.
1 D.C. Code §§4-601 to -634 (1994 Repl. & 1998 Supp.).
2 The Board seeks dismissal on the ground that the court lacks jurisdiction over the matter. It argues that petitioner filed her petition for reconsideration with the Board one day too late, i.e., on the sixteenth day after she received the Board's decision on April 10, 1996. See D.C. PERSONNEL, REGULATIONS, RULES OF PRACTICE AND PROCEDURE FOR THE POLICE AND FIREFIGHTERS RETIREMENT AND RELIEF BOARD, Ch. 26B §2525.1 (1989); See also D.C.App.R. 15(b).
Petitioner asserts that she filed her letter petition for reconsideration by mailing it to the Board on April 18, 1996, a full week before the time for seeking reconsideration expired. Although our attention has not been called to any affidavit or other proof of the date on which petitioner's letter of April 18, 1996, was mailed, she represents in her supplemental reply brief (p. 3), through counsel, that it was mailed on April 18, and respondent's initial brief also recited (p. 4) that petitioner's letter was sent that day.
Respondent Board subsequently submitted, however, that the letter of April 18, 1996, bears its date stamp of April 26, 1996, apparently indicating receipt by the Board on that day. The reliability of that date stamp is substantially undermined by the fact that petitioner's previous letter to the Board dated March 5, 1996, also bears the Board's date stamp of April 26 1996. Petitioner sent that letter in an effort to head off a formal adverse ruling of the Board, apparently after she had received informal notice that such a ruling would be made pursuant to the Board's vote of February 29, 1996. It is most unlikely that petitioner would have held on to her March 5 letter until after the Board's formal ruling of April 1, 1996, and then mailed it at about the same time she mailed her petition for reconsideration of the formal ruling. Under all the circumstances, we conclude that the petition for reconsideration was timely and thus tolled the petitioner's time to petition this court for review. See D.C.App.R. 15(b). We do not reach petitioner's alternative position that the Board waived any argument that this court lacks jurisdiction. See Barnett v. District of Columbia Dep't of Employment Servs., 491 A.2d 1156, 1158 n.4 (D.C. 1985).
3 In both of her letters, appellant alleged that she signed the separation agreement under duress. The Board, however, ruled that this allegation was not a proper subject matter for reconsideration, as it had not been raised in the initial application for survivor annuity benefits. See note 1, supra, D.C. PERSONNEL REGULATIONS, Ch. 26B §§2525.1, 2526.1, and 2526.2. In light of the disposition we reach, we need not consider whether the Board erred in declining to consider petitioner's allegations of duress.
4 The separation agreement indicated that Maryland law would be the governing law of the agreement.
5 The surviving spouse's automatic entitlement to annuity benefits is also expressed in the Survivors' Benefits section of the District of Columbia Police Officers and Firefighters Retirement Plan publication. The Survivors' Benefit section provides, in relevant part, that a survivor "benefit is paid automatically whether [a member] die[s] before or after [he] retire[s]." DISTRICT OF COLUMBIA RETIREMENT BOARD, SUMMARY PLAN DESCRIPTION OF THE RETIREMENT PLAN FOR THE DISTRICT OF COLUMBIA POLICE OFFICERS & FIREFIGHTERS 26 (1985) ("Retirement Plan").
6 See note 5, supra.
7 Counsel for the Board argues that Ms. Jackson's survivor annuity was freely alienable. Even if we were to accept that proposition, it would not affect the outcome, as we conclude that she did not undertake to alienate it.
8 The record before us does not disclose whether the personnel records of Mr. Jackson identified his spouse. If they did, it could reasonably be maintained that the survivor annuity was in her name.


Charles GELFO, Plaintiff and Appellant, v. LOCKHEED MARTIN CORPORATION, Defendant and Respondent.
Law Offices of David H. Greenberg, David H. Greenberg, Beverly Hills, and Roslynn E. Anderson for Appellant. Paul, Hastings, Janofsky & Walker, Elena R. Baca, Los Angeles, and Katherine C. Huibonhoa for Respondent.
Appellant Charles Gelfo sued his former employer, respondent Lockheed Martin Aeronautics Company, a division of Lockheed Martin Corporation (Lockheed), alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12940, subds. (a), (m), (n)),1 and wrongful termination in violation of public policy. Gelfo was laid-off as part of a reduction in force while suffering from a workplace injury. Lockheed later offered Gelfo a different position, but rescinded its offer after determining medical restrictions imposed as a result of Gelfo's back injury rendered him unable to perform the essential functions of the new position, and no reasonable accommodation was possible.
The trial court found the common law cause of action for wrongful termination in violation of public policy was time-barred, and granted Lockheed's motion for summary adjudication as to that cause of action. After the parties rested following a jury trial on the remaining issues, the court granted partially Lockheed's motion for directed verdict. It concluded: (1) Gelfo was not “actually” disabled; (2) Lockheed owed no duty to provide a reasonable accommodation to an applicant who was not “actually” disabled; (3) Lockheed owed no duty to engage in an informal interactive dialogue with an applicant or employee who was not “actually” disabled; and (4) Gelfo failed to establish an entitlement to punitive damages. The sole cause of action submitted to the jury alleged Lockheed violated FEHA by refusing to hire Gelfo based on its perception he was physically disabled. (§ 12940, subd. (a).) The jury returned a verdict against Gelfo.
We conclude the trial court correctly determined the common law tort claim was time-barred, and Gelfo failed to demonstrate an entitlement to punitive damages. We also conclude the trial court did not err in finding Gelfo was not “actually” physically disabled, based on his express concessions to that effect. However, the court erred in failing to determine, as a matter of law, that Lockheed regarded Gelfo as physically disabled, and compounded the error by submitting an erroneous instruction and verdict form to the jury. Finally, we conclude an employer must engage in an informal interactive process aimed at effecting a reasonable accommodation, and provide a necessary and reasonable accommodation to an applicant or an employee whom it regards as physically disabled.
1. Gelfo's employment history with Lockheed and the workers' compensation action.
Gelfo began working for Lockheed as a metal fitter in 1980. He was laid off in 1984, re-hired in 1997, and later promoted to senior metal fitter. Throughout his employment, Gelfo belonged to a labor union that was party to a collective bargaining agreement (CBA) with Lockheed.
In September 2000, Gelfo injured his lower back at work. Although Gelfo continued to work, he retained counsel, filed a workers' compensation claim, and began seeing Dr. Brent Pratley, an orthopedic surgeon. Gelfo was laid off in October 2000. Under the terms of the CBA, Gelfo was placed on a recall list making him automatically eligible for rehire as a metal fitter or in a related job classification for up to five years.
In November 2000, Pratley diagnosed Gelfo as “permanent and stationary” for workers' compensation purposes.2 Pratley restricted Gelfo from heavy lifting, bending or stooping. In May 2001, Pratley released Gelfo to return to his position with a restriction on repetitive lifting of items over 50 pounds. However, Lockheed had no metal fitter positions available at the time and Gelfo was not recalled.
Pratley re-examined Gelfo in September 2001. Gelfo told Pratley he had difficulty sitting or standing for “any great length of time,” and found it hard to “bend over and lift.” Gelfo also said it was periodically necessary for him to wear a back brace in order to stand for any length of time, since he continued to experience varying degrees of pain during certain activities and numbness in his leg. Based upon his re-examination, Pratley concluded Gelfo was a “qualified injured worker” who had lost approximately 75 percent of his pre-injury capacity for lifting. Pratley did not recommend any specific workplace modifications or preclusions, but said Gelfo should do “no heavy lifting, no repetitive bending, and no prolonged sitting or standing.” Pratley said Gelfo would not be able to return to his position as a metal fitter, and recommended his enrollment in a vocational rehabilitation program. Gelfo participated in a vocational rehabilitation program from October 2001 to January 2002.
Gelfo's workers' compensation action was settled in January 2002. His injuries were deemed permanent and stationary, and he received a permanent disability rating of 42.2 percent and an award of approximately $36,000.
2. Gelfo completes Lockheed's training program and is offered a job as a plastic parts fabricator.
In mid-September 2001, Lockheed invited Gelfo to participate in a composite training class (training). The class was designed to train each participant to be a plastic parts fabricator and assembler (fabricator). Lockheed's invitation informed participants the company anticipated job openings by the completion of the training, but noted “completion of the class [did] not guarantee employment.” Gelfo did not tell anyone connected with the training he was involved in an active workers' compensation action, had any physical limitations, or was under any workplace restrictions.
The training began on October 22, 2001. It ran for 10 weeks, two days a week, three hours a day. Each training class involved “hands on” instruction and classroom lessons. During the “hands on” portion, Gelfo performed the regular physical duties of a fabricator, including bending, stooping, sitting and standing, all of which occurred in a simulated setting. The tools used and projects completed by trainees were significantly smaller than those employed and completed by actual fabricators, and the work was performed on tables rather than a shop floor. Gelfo was able to complete the training and perform the required tasks without adverse consequences to his back. At a graduation luncheon on February 12, 2002, Lockheed offered each trainee a position as a fabricator. Lockheed did not mention its job offers were contingent upon the trainees' obtaining a security and a medical clearance. Based on his past experience with the company, Gelfo knew he would be required to obtain a security clearance. For previous positions, Gelfo also had been required to pass a medical examination.
3. Gelfo's offer is revoked.
On February 14, 2002, Erica Matthews, an employee in Lockheed's Labor Relations Department, called Gelfo to inform him Lockheed had revoked his job offer. Matthews told Gelfo a review of his file revealed medical restrictions imposed by his physician that were incompatible with the physical demands of the fabricator position.
At the time, Gelfo said his back “[felt] great” and he believed there was “nothing that [he] couldn't do.” Gelfo told Jan Taylor, who was handling his workers' compensation action on Lockheed's behalf, “that he really didn't have any limitations.” Gelfo also went to Pratley, told him his back felt better and was not bothering him as it had before, and said he felt able to perform the fabricator job without restrictions. Gelfo said Pratley agreed the work restrictions were no longer necessary. Gelfo claimed he obtained a complete release from Pratley's office on February 11, 2002. However, Gelfo said his attorney had advised against providing it to the company. After February 2002, Gelfo had no further discussions with Lockheed regarding the fabricator position or any workplace accommodation until he received a letter from the company in July 2002.
In early July, Lockheed's Placement Review Committee (committee) met to consider whether an accommodation was possible to enable Gelfo to perform the fabricator job, consistent with the restrictions in his medical file.3 To facilitate the process, the committee had earlier forwarded a job description to Joe Ruggles, the manager in charge of the fabricator position to obtain a breakdown of the position's essential and nonessential functions, and an estimate of the time spent performing each function. The committee discussed the matter, reviewed a summary of the Pratley and Paul reports prepared by Lockheed's medical unit, compared the reports' conclusions with Ruggles' assessment and job description, and considered possible accommodations. The committee consulted with Ted Santos, Lockheed's in-house physician, to obtain clarification of terms in the doctors' reports, and reviewed a summary of Pratley's deposition testimony given in the workers' compensation action.4 The committee determined Lockheed could accommodate Gelfo's lifting restriction. However, it determined the company could not accommodate Gelfo's other restrictions, and no reasonable accommodation or modification was possible which would permit him to perform the work of a fabricator or any other available position within his classification.
On July 12, 2002, Shirley Harbeson, Lockheed's Senior Manager of Equal Opportunity Programs and the committee's chair, wrote to inform Gelfo of the company's decision. Her letter indicated Lockheed's belief that Gelfo was restricted from “bending, stooping, lifting, pushing, pulling, climbing, or other activities that involve comparable physical effort,” “lifting heavy objects over 50 lbs.,” and any prolonged sitting or standing. Harbeson told Gelfo Lockheed could accommodate his heavy lifting restriction, but was not able to accommodate his other physical limitations because the job description required him to perform certain prohibited tasks for three to six hours a day.5 Harbeson invited Gelfo to notify Lockheed if he became aware of a reasonable accommodation that would permit him to perform the essential functions of a fabricator, consistent with his medical restrictions.
On July 24, 2002, Gelfo wrote to Lockheed requesting that the company reconsider its decision. Gelfo said Lockheed was misinformed about his medical restrictions, and reiterated he had successfully completed the training without incident.6 Gelfo informed Harbeson he and his doctor agreed he could perform the job. Gelfo also told Harbeson he had recently accepted a position with another company that required him to perform the same functions as a fabricator and was currently performing the same job functions without accommodation or incident.
Harbeson responded to Gelfo's letter on September 4, 2002. She noted her earlier letter had mistakenly relied on an outdated “limits” list. Nonetheless, based on the Pratley and Paul reports and Pratley's deposition testimony, Lockheed adhered to the view that Gelfo's inability to sit or stand for more than three hours a day was a physical limitation for which no reasonable accommodation was available.
After exhausting his administrative remedies, Gelfo filed this action on March 30, 2003. He alleged causes of action for: (1) disability discrimination in violation of FEHA; (2) failure to accommodate in violation of FEHA; (3) failure to engage in timely good faith interactive process in violation of FEHA; and (4) wrongful termination in violation of public policy.
In due course, Lockheed moved for summary judgment or, in the alternative, summary adjudication, arguing the common law cause of action for wrongful termination in violation of public policy was time-barred. Summary adjudication was granted.
A six-day jury trial was conducted in July 2004 on the three remaining claims. After the parties rested, Lockheed sought a directed verdict on all causes of action and the claim for punitive damages. The motion was partially granted, and all but one portion of Gelfo's first cause of action for disability discrimination was dismissed. By directed verdict, the trial court found Gelfo did not have an “actual” disability. Based on that finding, the court concluded Lockheed had no legal duty to provide a reasonable accommodation to Gelfo or to engage in an interactive dialogue with him, and dismissed his second and third causes of action. The court also found Gelfo failed to establish an entitlement to punitive damages. The sole claim remaining for the jury's determination was whether Lockheed violated FEHA by refusing to rehire Gelfo in February 2002 because it “regarded” him as a person with a physical disability.
Following deliberations, the jury returned a special verdict stating Lockheed did not “mistakenly believe that [Gelfo's] low back injury limited his ability to work.” From a judgment entered in favor of Lockheed, this appeal ensued.
1. Gelfo's cause of action for wrongful termination in violation of public policy is time-barred.
Lockheed sought and obtained summary adjudication on Gelfo's common law cause of action for wrongful termination in violation of public policy because it was barred by the statute of limitations. The ruling was correct.
Gelfo was laid-off from his position as a metal fitter in October 2000 as part of a reduction in force at Lockheed. Gelfo does not claim his lay-off was discriminatory or unlawful in any respect. Nor does he claim any reason to believe Lockheed's layoff decision was anything other than “final.” Nonetheless, Gelfo argues that, because the CBA gave him a right of recall for five years, he remained technically employed by Lockheed when it refused to place him in the fabricator position in February 2002. Gelfo's argument lacks merit.
Gelfo's employment at Lockheed ended when he was laid-off in October 2000. Under the express terms of the CBA, “[t]he word ‘layoff’ refers to the termination of an employee from the active payroll of the Company as a reduction of the total number of people within a classification in the Company ․,” and “[l]aid-off employees are rehired from the recall list in order of seniority․” Gelfo concedes he has no reason to believe his October 2000 lay-off was anything other than a final decision terminating his employment as a Lockheed metal fitter.7 Moreover, the right of recall under the CBA was limited to the position Gelfo held when he was laid off or to a job classification he had held before. The fabricator position does not fall within either category, and Gelfo concedes he was not recalled when offered the position. Because Gelfo ceased being a Lockheed employee in October 2000, his claim for wrongful discharge, filed nearly two and one-half years later, was untimely.
2. The trial court's determination that Gelfo was not “actually” physically disabled was not erroneous.
(3) Is “regarded or treated by” the individual's employer as having, or having had, any condition that makes achievement of a major life activity difficult, or as having, or having had, a physiological condition that is not presently disabling, but that may become so.
Gelfo prosecuted this action on the alternative theories that he either had an “actual” qualifying physical disability or that Lockheed “regarded” him as having one.8 On appeal, Gelfo insists the trial court erred in granting Lockheed's motion for a directed verdict on the portion of his FEHA claim of employment discrimination based on an actual physical disability. Gelfo maintains the issue should have been submitted to the jury for determination. Lockheed argues the evidence was uncontradicted, and the directed verdict on this aspect of Gelfo's claim was proper. “A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630, 85 Cal.Rptr.2d 386; Newing v. Cheatham (1975) 15 Cal.3d 351, 358-359, 124 Cal.Rptr. 193, 540 P.2d 33.) This court decides de novo whether sufficient evidence was presented to withstand a directed verdict. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210, 77 Cal.Rptr.2d 660.) In that sense, we stand in the shoes of the trial court. Applying this legal standard, we conclude Lockheed is correct.
To qualify as a member of the protected class under FEHA, Gelfo must demonstrate his impairment constitutes a disability according to the statutory definition. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 257, 102 Cal.Rptr.2d 55 (Jensen ).) It is insufficient for Gelfo simply to allege a disability or to identify an injury or physical condition. To proceed as a physically disabled person under the first prong of the statutory definition, Gelfo must demonstrate his injury or physical condition (in this instance, a low back injury, whose existence is undisputed) makes “difficult” the achievement of work or some other major life activity. Gelfo failed to make this showing.
3. Having found as a matter of law that Gelfo was not “actually” disabled, the trial court was obligated to make a similar finding with respect to the “regarded as” aspect of Gelfo's disability claim.
After determining, based on his own admissions, that Gelfo was not “actually physically disabled,” the trial court was obligated to determine, based on Lockheed's similar factual admissions, that the company had in fact “regarded” him as such.10 Lockheed never maintained its decision not to hire Gelfo was premised on anything other than its belief that medical restrictions imposed as a result of Gelfo's lower back injury rendered him unable to perform the essential functions of a fabricator. Lockheed's consistent position that it withdrew Gelfo's job offer because it perceived he suffered from a disabling physical condition limiting his ability to perform is the functional equivalent of an admission the company withdrew the offer because it “regarded” him as limited in his ability to work.11 (See Rodriguez v. ConAgra Grocery Products Co. (5th Cir.2006) 436 F.3d 468, 480 [reaching a similar result under the ADA after the court found plaintiff was not actually disabled based on his admissions, but also concluded there was no question his employer had perceived him as such based on its unequivocal statement that it withdrew plaintiff's job offer after plaintiff's preemployment medical exam allegedly showed he had “uncontrolled diabetes.”].) Accordingly, no factual question remained for the jury to decide. Gelfo satisfied FEHA's definition. To paraphrase the statute, a person is disabled if he is “regarded or treated by the employer ․ as having, or having had, any physical condition that [currently] makes [or, in the future may make] achievement of a major life activity difficult.” (§ 12926, subd. (k)(4), (5).) On this record, Lockheed unquestionably regarded Gelfo as a person with a back injury sufficiently debilitating that it either made his ability to work as a fabricator difficult when he was denied the job, or was likely to do so in the future. Accordingly, the undisputed issue of whether Lockheed “regarded” Gelfo as physically disabled should not have been submitted to the jury in the first place.
4. The legal error was compounded when the jury received an erroneous and confusing instruction and verdict form.
The trial court erred by failing to decide the definitional issue whether Lockheed regarded Gelfo as physically disabled as a matter of law. The error caused the submission of the issue to the jury, a problem which was compounded when the court modified CACI No. 2540 and the verdict form, in a confusing and erroneous way.
Defendant's decision was a substantial factor in causing Plaintiff's harm.
“1. Was Plaintiff an applicant to Defendant for a job?
“If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.
“2. Did Defendant mistakenly believe that Plaintiff's low back injury limited his ability to work?
The jury unanimously answered “yes” to the first question, and “no” to the second. The jury then ceased deliberating, and signed and returned the verdict.
The problem with the instruction and verdict form lies with addition of the word “mistakenly” to the second element of proof in the instruction and Question No. 2 of the verdict form. By adding “mistakenly,” the legal standard was impermissibly altered, and the jury given a confusing questionnaire and implicitly forced to decide an irrelevant issue.13 The sole issue under the “regarded as” definitional prong is whether the employer believes an applicant or employee is physically disabled. By adding the modifier “mistaken” to the instruction, the jury was asked to decide whether Lockheed believed Gelfo was actually disabled and whether that belief was wrong. To respond to the question, the jury was implicitly compelled to decide if Gelfo had an actual disability. That factual inquiry had already been resolved by the court.
More importantly, forcing a plaintiff to show an “actual disability” to prevail on a “regarded as” theory is antithetical to the purpose of the statute. In essence, it renders “regarded as” definitional protection available only to those who are actually disabled and who do not need the protection. Lockheed conceded it rescinded its job offer on the belief that work restrictions engendered by Gelfo's back injury limited his ability to perform the essential functions of a fabricator. In view of Lockheed's explicit concession and the trial court's factual findings, whether Lockheed's perception was mistaken was irrelevant.
Lockheed asserts the statute's “regarded as” protection is limited to persons who are denied or who lose jobs based on an employer's reliance on the “myths, fears or stereotypes” frequently associated with disabilities. Some support exists for this view. (See Diffey v. Riverside County Sheriff's Department (2000) 84 Cal.App.4th 1031, 1037, 101 Cal.Rptr.2d 353 disapproved on another point by Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6, 130 Cal.Rptr.2d 662, 63 P.3d 220 [“[T]he purpose of the ‘regarded-as' prong is to protect individuals rejected from a job because of the ‘myths, fears and stereotypes' associated with disabilities”].) By delineating the protections afforded in section 12926 to persons “regarded as” disabled, the Legislature intended “to provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” (§ 12926.1, subd. (d).) However, the statutory language does not expressly restrict FEHA's protections to the narrow class to whom Lockheed would limit its coverage. To impose such a restriction would exclude from protection a large group of individuals, like Gelfo, with more mundane long-term medical conditions, the significance of which is exacerbated by an employer's failure to reasonably accommodate. Both the policy and language of the statute offer protection to a person who is not actually disabled, but is wrongly perceived to be. The statute's plain language leads to the conclusion that the “regarded as” definition casts a broader net and protects any individual “regarded” or “treated” by an employer “as having, or having had, any physical condition that makes achievement of a major life activity difficult” or may do so in the future. (§ 12926, subd. (k)(4), (5).) We agree most individuals who sue exclusively under this definitional prong likely are and will continue to be victims of an employer's “mistaken” perception, based on an unfounded fear or stereotypical assumption. Nevertheless, FEHA's protection is nowhere expressly premised on such a factual showing, and we decline the invitation to import such a requirement.
5. An employer must explore reasonable accommodations for and engage in an interactive dialogue with applicants or employees whom it regards as disabled.
Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954, 62 Cal.Rptr.2d 142.) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. (See Jensen, supra, 85 Cal.App.4th at p. 266, 102 Cal.Rptr.2d 55.) While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.
Relying on federal authorities interpreting the ADA, Lockheed maintains the right to reasonable accommodation flows only to an applicant or employee who is “actually” disabled. Lockheed also asserts that requiring an employer to participate in an interactive process with an individual “regarded as” disabled promotes form over function. Such a requirement, in its view, compels employers to engage in an expensive but futile process, because employees merely “regarded as” disabled do not qualify for a reasonable accommodation. (See Gilday v. Mecosta County (6th Cir.1997) 124 F.3d 760, 764 [a person without an actual disability needs no accommodation].) The trial court agreed and directed verdicts against Gelfo on his causes of action for “failure to accommodate” and “failure to engage in the interactive process.” The directed verdicts were a mistake.
On these issues, which are novel to California and on which the federal courts are divided, we conclude that employers must reasonably accommodate individuals falling within any of FEHA's statutorily defined “disabilities,” including those “regarded as” disabled, and must engage in an informal, interactive process to determine any effective accommodations.
a. An employer must reasonably accommodate an applicant or employee whom it regards as disabled.
The Ninth Circuit followed suit in Kaplan v. City of North Las Vegas (9th Cir.2003) 323 F.3d 1226, 1232-1233 (Kaplan).16 In Kaplan, a police officer, unable to hold a gun or grasp objects with one hand, was misdiagnosed with rheumatoid arthritis. Based on the misdiagnosis, the employer believed the injury was permanent, concluded he would not be able to hold or use a gun effectively or perform other essential job functions, and fired him. While the court found Kaplan was not “actually disabled,” it determined he was “regarded as” disabled because his employer believed he was permanently disabled by arthritis. Relying primarily on Weber, the court held “regarded as” plaintiffs are not entitled to a reasonable accommodation under the ADA. (Kaplan, supra, 323 F.3d at pp. 1232-1233.) The court acknowledged the ADA's definition of a “qualified individual with a disability” (i.e., those to whom reasonable accommodation is owed under the ADA) does not differentiate among the three disjunctive prongs of the “disability” definition. (Id. at p. 1232.) Nonetheless, it concluded, “[t]he absence of a stated distinction ․ [was] not tantamount to an explicit instruction by Congress that ‘regarded as' individuals are entitled to reasonable accommodations.” (Ibid.) Because a formalistic reading of the plain language of the statute would lead to “bizarre results,” courts must look beyond the literal language of the ADA.
Weber and Kaplan were decided under the ADA. No published California case has considered whether an employer has a duty under FEHA to provide a reasonable accommodation to an applicant or employee who is not “actually” disabled, but is “regarded as” having a disability.17 Because the ADA and FEHA share the goal of eliminating discrimination, we often look to federal case authority to guide the construction and application of FEHA, particularly where parallel statutory language is involved. However, because FEHA “provides protections independent from those in the [ADA]” and “afford[s] additional protections than the [ADA]” (§ 12926.1, subd. (a)), state law will part ways with federal law in order to advance the legislative goal of providing greater protection to employees than the ADA. (See Diaz v. Federal Express Corp. (C.D.Cal.2005) 373 F.Supp.2d 1034, 1053-1054.) To that end, we are unpersuaded by the reasoning of Weber and Kaplan, whose shortcomings are explored in the better-reasoned decision of Williams, supra, 380 F.3d 751, and its progeny.
b. An employer must engage in an informal dialogue to determine effective reasonable accommodations with an applicant or employee regarded as disabled.
Under section 12940, subdivision (n), it is an unlawful employment practice “[f]or an employer ․ to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical ․ disability․” The statute provides an independent basis for liability. (Claudio v. Regents of University of California, supra, 134 Cal.App.4th at p. 243, 35 Cal.Rptr.3d 837.) Nonetheless, an employer's duty to accommodate is inextricably linked to its obligation to engage in a timely, good faith discussion with an applicant or employee whom it knows 21 is disabled, and who has requested an accommodation, to determine the extent of the individual's limitations, before an individual may be deemed unable to work.
Lockheed argues an employer owes no duty to engage in a “futile” discussion with an applicant or employee who is merely “regarded as” disabled and to whom no duty of reasonable accommodation is or will be owed. This argument is rejected for the same reasons we rejected the argument an employer need not accommodate an employee who is “regarded as” disabled. Indeed, the argument for enforcing a duty to engage in a discussion may be more compelling in the context of the interactive process.
6. Gelfo failed to establish an entitlement to punitive damages.
The trial court granted Lockheed's motion for directed verdict on the ground Gelfo failed to present sufficiently clear and convincing evidence to permit the jury to find a corporate decision-maker was involved in rescinding his job offer.
The judgment is reversed as to: (1) the cause of action for disability discrimination in violation of Government Code section 12940, subdivision (a), based on the allegation Lockheed refused to hire Gelfo because it regarded him as a physically disabled person; (2) the cause of action for failure to provide reasonable accommodation in violation of Government Code section 12940, subdivision (m); and (3) the cause of action for failure to engage in the interactive process in violation of Government Code section 12940, subdivision (n). The matter is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. Each party is to bear his or its costs of appeal.
1. All statutory references are to this code unless otherwise specified.
3. The committee, which is part of Lockheed's Equal Opportunity Programs Department, meets with managers who have indicated they cannot accommodate an individual's workplace limitations. The committee reviews the requirements of a particular job and assess the possibility of job modifications or reassignment of duties within an employee's classification to determine if the individual's medical restrictions can be accommodated.
4. In that deposition, Pratley testified Gelfo could not perform the functions of a fabricator.
5. Those tasks were bending at the neck and waist, kneeling, twisting at the neck and waist, leaning, repetitive use, manipulation, and pushing and pulling of hands.
6. Gelfo spoke with Harbeson and one of her employees on two occasions in July, repeating his claim to have an unequivocal medical release freeing him to return to work without restrictions. Harbeson testified Gelfo refused to furnish the release on advice of counsel. Gelfo testified he gave the release to a Lockheed representative and “certain people,” and also sent it by certified mail to Harbeson and one of her employees. No one at Lockheed ever received the release.
8. Gelfo has never asserted he was physically disabled because Lockheed knew he had “a record or history of” a covered physiological condition, and may not do so now. (See Cinnamon Square Shopping Center v. Meadowlark Enterprises, supra, 24 Cal.App.4th at p. 1844, 30 Cal.Rptr.2d 697.)FEHA does not employ the term “actual” disability. We use the term for clarity to distinguish a circumstance involving an individual who is or may be deemed physically disabled because he or she satisfies both requirements of the first prong of FEHA's definition, from those involving an individual considered physically disabled under the “regarded as” and/or “record of” definitional prongs.
10. Gelfo raised this point repeatedly throughout the trial, and unsuccessfully moved for directed verdict on this issue once the court granted Lockheed's directed verdict on the issue of actual disability.
13. Two constructions of Question No. 2 are logically plausible. The first is based on the implicit premises that (1) Gelfo's back injury did not limit his ability to engage in a major life activity, but (2) when he was denied the fabricator position, Lockheed believed Gelfo's back injury limited his ability to engage in the major life activity of work. The issue for the jury was: Was Lockheed's belief mistaken? To be consistent with the facts as found by the trial court, the jury's answer to this question would have been “yes.” It was not.But the same question could rest on different implicit premises, namely: (1) Gelfo's low back injury limited his ability to work as a fabricator; and (2) Lockheed believed Gelfo's low back injury limited his ability to work as a fabricator. The issue for the jury: Was Lockheed's belief mistaken? The jury's “no” answer meant it concluded Lockheed was correct to believe Gelfo's low back injury limited his ability to work, a conclusion directly contrary to the court's finding.Lockheed posits an alternative construction in its supplemental brief. However, that construction is contingent on the jury's awareness the trial court had determined Gelfo was not actually disabled, a finding about which it was not informed.
14. Gelfo need not show Lockheed “had it in for him.” To support a claim of disability discrimination, a plaintiff need only show “animus” directed at the disability. (See e.g., Rodriguez v. ConAgra Grocery Products Company, supra, 436 F.3d at p. 480) [ADA]. It is of no moment that the employer has no ill will against the plaintiff (or anyone else with a bad back).
16. The Fifth and Sixth Circuits have reached similar conclusions, but the cases contain virtually no legal analysis on the issue. (See Newberry v. East Texas State University (5th Cir.1998) 161 F.3d 276, 280; Workman v. Frito-Lay, Inc. (6th Cir.1999) 165 F.3d 460, 467.)We adopt the opposite view, as have the First, Third, Tenth, Eleventh and, to a limited extent, the Second Circuits. (See Katz v. City Metal Co., Inc. (1st Cir.1996) 87 F.3d 26, 33; Williams v. Philadelphia Housing (3d Cir.2004) 380 F.3d 751, 772-776, (Williams), cert. denied (2005) 544 U.S. 961, 125 S.Ct. 1725, 161 L.Ed.2d 602; Kelly v. Metallics West, Inc. (10th Cir.2005) 410 F.3d 670, 675-676 (Kelly); D'Angelo v. ConAgra Foods, Inc. (11th Cir.2005) 422 F.3d 1220, 1235-1239 (D'Angelo); Jacques v. DiMarzio, Inc. (E.D.N.Y.2002) 200 F.Supp.2d 151, 163-169, (Jacques), affirmed in pertinent part, 386 F.3d 192, 204.) The Fourth and Seventh Circuits have not yet taken a position. (See e.g., Cigan v. Chippewa Falls School Dist. (7th Cir.2004) 388 F.3d 331, 335).
20. Lockheed maintains it did everything within its power to accommodate Gelfo's medical restrictions, but was unable to accommodate the restrictions against prolonged sitting and standing. Gelfo insists that, had Lockheed discussed the matter with him, it would have learned his restrictions-to the extent they required any accommodation at all-could easily have been accommodated by permitting him an additional break or two, or allowing him to occasionally sit on a stool. These are factual questions properly decided on remand in the first instance.
21. FEHA's reference to a “known” disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer's attention, it is based on the employer's own perception-mistaken or not-of the existence of a disabling condition or, perhaps as here, the employer has come upon information indicating the presence of a disability.
23. Lockheed asserts that, if it had a duty to engage in the interactive process, the duty was discharged. “If anything,” it argues, “it was Gelfo who failed to engage in a good faith interactive process.” Gelfo counters Lockheed made up its mind before July 2002 that it would not accommodate Gelfo's limitations, and nothing could cause it to reconsider that decision. Because the evidence is conflicting and the issue of the parties' efforts and good faith is factual, the claim is properly left for the jury's consideration.
We concur: COOPER, P.J., and RUBIN, J.


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Question: If I employ someone jointly with another employer, can I be liable for the other employer's discriminatory acts towards that employee?
Answer: Yes -- but only if you, as a joint employer, participated in, or condoned, the discrimination.
First, you should determine whether you are, in fact, a "joint employer." Under Title VII, the ADEA and the ADA, two or more entities are joint employers if they share or co-determine the matters governing the essential terms and conditions of employment. Though different courts across the country have developed varying tests to determine if an entity is a joint employer, they will generally look to the control that an entity asserts over a person, including: (1) authority to hire and fire, promulgate work rules and assignments, and establish terms and conditions of employment; (2) day-to-day supervision, including discipline; (3) control of employee records, including payroll and taxes, and/or (4) where or how the work is performed.
However, being a joint employer with another entity does not automatically mean that you are equally responsible for any discrimination that may occur. To the contrary, most courts have found that a joint employer can only be held responsible if it participates in the discrimination or if it knew about, or should have known about, the discrimination but nonetheless failed to take steps to correct it. Burton, 798 F.3d at 229; Whitaker v. Milwaukee Cnty., 772 F.3d 802, 811 (7th Cir. 2014); TorresNegrón v. Merck & Co., 488 F.3d 34, 41 n. 6 (1st Cir.2007); Llampallas v. MiniCircuits, Lab, Inc., 163 F.3d 1236, 124445 (11th Cir.1998). Therefore, whether an employer is responsible for the discrimination of another co-employer is very fact-specific.
Often times, questions about potential joint employer come about as a result of the following relationships: contractor/subcontractors, staffing/temp agencies and franchisers/franchisees. If your company is in one of these relationships, the information that follows may be especially helpful.
Contractors/Subcontractors: Speaking generally, where one business subcontracts particular functions to another, it is often unlikely that the entity that contracts out the work will be considered a joint employer. See, e.g., Mays v. BNSF Ry. Co., 974 F.Supp.2d 1166, 1178 (N.D. Ill. 2013). Such a finding is not impossible, however, because the joint employer test focuses on the actual relationship, not the mere fact that a subcontractor is used. For example, in E.E.O.C. v. Skanska USA Bldg., Inc., 550 Fed. Appx. 253, 256 (6th Cir. 2013), a court determined that the general contractor could be a joint employer, even though it facially subcontracted out a particular function, because the general contractor oversaw the day-to-day conduct of the subcontractor's workers, dealt with workers' complaints, removed workers from the job, etc. Thus, because the general contractor was a joint employer, it was exposed to liability for the discrimination that a worker alleged took place on the worksite and which the general contractor condoned, promulgated or did not correct.
How Long is a 'Reasonable' Amount of Time?
Staffing Agencies/Temp Agencies: Most courts have held that the entity in control of the workplace is liable for misconduct. Staffing agencies often retain a significant amount of control over employers, i.e. through payment of wages and the ability to discipline, hire and fire, thus can easily be found to be a joint employer exposed to liability for discrimination. See, e.g., Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 415 (4th Cir. 2015). Therefore, staffing agencies would be wise to monitor potential discriminatory practices in the entities in which they place employees, and to take corrective measures in their power when discrimination is detected. For example, in a recent Texas case, Burton v. Freescale Semiconductor, Inc., a court found that a staffing agency could be held responsible for disability discrimination under the ADA because it did not override the other employer's questionable decision to fire one of its employees after she filed a workers' compensation claim. 798 F.3d at 229. The staffing agency argued that, under the terms of its contract with the other employer, it had no choice but to follow the order to terminate the employee's employment; however, the court disagreed and pointed out that the contract required the staffing agency to comply with federal law, including the ADA. Id. The court also found it relevant that the staffing agency participated in the discrimination in that it initially expressed concern that the termination was "dubious," and then proceeded to participate in a "communication plan" wherein it appears that the employee was provided with false reasons for her discharge. Id.
Franchisors and Franchisees: Courts have almost uniformly held that franchisors are not joint employers with franchisees unless special circumstances exist such that the franchisor exercises actual control over employee relations at the franchisee level. Because franchisors seldom tend to exert substantial control over the workers retained by franchisees, being found to be a joint-employer status is unlikely, though not impossible.
In sum, employers should carefully monitor the relationships that they have with other entities, especially when the relationship entails sharing or jointly managing employees.
Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York Office. Proskauer Associate Lindsey Chopin, resident in Proskauer's New Orleans office, assisted with this article.

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