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Thursday, November 7, 2013

Rope v. Auto-Chlor System of Washington: Court Addresses Donation Protection Act, Associational Discrimination, and Other Discrimination and Retaliation Causes of Action

Rope v. Auto-Chlor System of Washington, Inc. (10/16/13) --- Cal.App.4th ---, deals with a unique set of facts, stated succinctly in the opinion:
When he was hired in September 2010, plaintiff Scott Rope informed his employer, defendant Auto-Chlor System of Washington, Inc. (Auto-Chlor) he planned in February 2011 to donate a kidney to his physically disabled sister, and requested that he be given leave to do so. Rope later requested that the leave be extended and paid under the then-newly enacted Michelle Maykin Memorial Donation Protection Act (DPA), Labor Code sections 1508–1513, which would become effective January 1, 2011. Rope was fired two days before the DPA became effective. He sued his former employer for violation of the DPA and other provisions of the Labor Code, violation of the Fair Employment and Housing Act, Government Code section 12940 et seq. (FEHA), and wrongful termination in violation of public policy. 
Slip op. at 2. 

The trial court sustained Auto-Chlor's demurrers without leave, Rope appealed, and the Court of Appeal affirmed in part and reversed in part. 

Rope did not state a cause of action for violation of the DPA, retaliation for requesting leave under the DPA, or retaliation for complaining about refusal to grant DPA leave. Slip op. at 5-9. Auto-Chlor terminated Rope before the DPA became effective, and the DPA was not retroactive. 

Rope did not state a cause of action under any other provision of the Labor Code. Slip op. at 9-12. He could not allege violation of Labor Code section 1102.5 because he did not claim either that he reported his suspicions of unlawful activity to any governmental agency or that he refused to violate the law. He did not allege any other Labor Code violation, and his causes of action under Labor Code sections 98.6 and the Private Attorneys General Act (Cal. Lab. Code 2698 et seq.) also failed. 

Rope did not state a cause of action for retaliation because he did not allege that he had opposed any conduct forbidden by or filed a complaint under the FEHA. Slip op. at 12-16. Merely requesting leave under the DPA did not constitute protected activity for FEHA purposes. 

Rope stated a cause of action for associational discrimination under the FEHA. Slip op. at 18-22. "The reasonable inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope's association with his physically disabled sister," and this was sufficient to allege associational discrimination. Slip op. at 22. 

Rope did not state causes of action for discrimination based on an actual or perceived disability because he did not allege "an impairment that constitutes a physical disability" or that Auto-Chlor perceived him as having such an impairment. Slip op. at 22-23. 

For the same reasons stated with regard to his claim for associational discrimination, Rope stated causes of action for wrongful termination in violation of public policy and for failure to maintain an environment free from discrimination. Slip op. at 23-24. 

The opinion is available here

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