Castro-Ramirez v. Dependable Highway Express: FEHA Requires Reasonable Accommodation of Employee's Need to Adjust Schedule to Care for Disabled Minor Child

In Castro-Ramirez v. Dependable Highway Express, Inc. (Cal.App. 4/4/16), the plaintiff sued his former employer, DHE, alleging disability discrimination, failure to prevent discrimination, retaliation, and wrongful termination in violation of public policy. Plaintiff, a truck driver, alleged as follows: 

Plaintiff’s son requires daily dialysis, and according to the evidence, plaintiff must be the one to administer the dialysis. For several years, plaintiff’s supervisors scheduled him so that he could be home at night for his son’s dialysis. That schedule accommodation changed when a new supervisor took over and ultimately terminated plaintiff for refusing to work a shift that did not permit him to be home in time for his son’s dialysis. The trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion to tax costs.

The Court of Appeal reversed, holding as follows: 

The trial court erred in summarily adjudicating the disability discrimination cause of action. On an issue of first impression, employers have a duty under FEHA to provide reasonable accommodations to an applicant or employee who is associated with a disabled person. Association with a disabled person constitutes a disability under Government Code section 12926(o). Less stringent standards under the Americans with Disabilities Act do not control and should be distinguished. Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal.App.4th 635 (discussed here and here) also should be distinguished because it relied on a gender and race discrimination case for its statement of the elements of a FEHA case, rather than a disability discrimination cause of action. 

On standards for discriminatory motive and pretext, Rope again is distinguishable because it relied on authority under the ADA, rather than the FEHA. Under the facts here, a jury could infer reasonably that plaintiff's association with his son was a substantial motivating factor in the decision to terminate and that DHE's reason for termination was pretextual. 

The trial court also erred in summarily adjudicating the disability discrimination cause of action. The law does not require employees to state that an employer's conduct constitutes discrimination or violates the FEHA. Employees need not use any legal terms or buzz words. Evidence that plaintiff complained to his supervisor -- and his supervisor -- about changes to his schedule and his need to give his son dialysis constituted opposition to the denial of a reasonable accommodation, a practice forbidden under the FEHA. 

The evidence also would permit a trier of fact to infer a causal link between plaintiff’s complaints and his termination. The temporal proximity between the two were enough to permit a trier of fact to infer causation. Rope is no longer good authority on this issue under amended section 12940(m)(2) (discussed here). 

The court erred in summarily adjudicating plaintiff's failure to prevent discrimination and wrongful termination causes of action for the reasons stated above. 

Because the trial court should not have granted DHE's motion, it also should not have denied plaintiff's motion to tax costs. 

Plaintiff was entitled to recover his costs on appeal. 

The opinion is available here.  

Wallace v. County of Stanislaus: Disability Discrimination Plaintiff Need not Prove Employer's Animus or Ill Will

Wallace v. County of Stanislaus (Cal.App. 2/25/16) considers "how to instruct a jury on the employer’s intent to discriminate against a disabled employee and, more specifically, what role 'animus' plays in defining that intent." 

Sheriff's Deputy Dennis Wallace sued the County of Stanislaus for disability discrimination after it placed him on an unpaid leave of absence based on its belief that he could not safely perform his duties as a bailiff with or without accommodation. 

The case went to trial prior to the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203. The trial court modified the then-current version of California Civil Jury Instruction (CACI) No. 2540 to include a requirement that Wallace prove the County regarded or treated him “as having a disability in order to discriminate.” They jury found as follows: (1) the County treated Wallace as disabled; (2) Wallace was able to perform his essential job functions with or without reasonable accommodation; and (3) the County failed to prove Wallace could not safely perform those functions; but (4) County did not regard or treat Wallace as disabled "in order to discriminate." The trial court entered judgment for the County, and Wallace appealed. 

The Court of Appeal reversed, holding as follows: 

Where there is only circumstantial evidence of an employer's discriminatory motive, proof of motive follows the three-step burden-shifting McDonnell Douglas test. However, disability discrimination cases often involve "direct evidence of the role of the employee’s actual or perceived disability in the employer’s decision to implement an adverse employment action." In disability discrimination cases, courts should not "automatically apply" McDonnell Douglas, but should "determine whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition." 

Disability cases differ from other discrimination cases because California's definitions of physical disability, mental disability, and medical condition are broad and are intended to protect employees from discrimination based on actual or perceived disability. Further, the law protects employees "erroneously or mistakenly believed" to have a disability. 

Under Harris, an employer discriminates against an employee because of a disability when the disability is a substantial motivating reason for the employer’s decision to subject the employer to an adverse employment action. An employee need not demonstrate that the employer had any discriminatory animus; only that the employee's disability was a substantial motivating factor in the adverse employment action decision. 

A plaintiff who meets the substantial motivating factor test need not show any additional animus. The Court emphasized that the term "animus" is vague and should not be used in disability discrimination cases with "direct evidence that the employer’s motive for taking an adverse employment decision was the plaintiff’s actual or perceived disability." 

The trial court's erroneous instruction prejudiced Wallace. There was no dispute that the County's mistaken perception that Wallace could not perform the essential functions of the job was a substantial motivating factor for its decision to place him on unpaid leave. There also was no dispute that this decision caused Wallace economic harm. 

The Court remanded for a limited trial on the amount of Wallace's economic damages and the existence and amount, if any, of his non-economic damages. 

The opinion is available here. 

Prue v. Brady Company: Plaintiff Sufficiently Alleged Wrongful Termination in Violation of the Public Policy against Disability Discrimination

In Prue v. Brady Company/San Diego, Inc. (Cal.App. 11/17/15), the plaintiff sued the defendant for wrongful termination in violation of public policy, alleging that the defendant terminated him after he suffered a work-related injury. The trial court granted summary judgment for the defendant, and the Court of Appeal reversed, holding as follows:

"Because the gist of Brady's motion was not the absence of disputed material facts but was instead whether Prue's complaint alleged sufficient facts to state a cause of action, its motion for summary judgment was, in effect, a motion for judgment on the pleadings."

The complaint "sufficiently alleged essential facts to inform Brady that [Prue] was alleging a common law cause of action for wrongful termination in violation of FEHA's public policy against disability discrimination." The complaint alleged: "(1) Prue suffered from a disability (i.e., a musculoskeletal injury); (2) he was capable of performing the essential functions of his position; (3) he was subjected to an adverse employment action (i.e., termination of his employment) because of his disability; and (4) Brady knew of his disability when it decided to terminate his employment."

The complaint did not allege only a violation of Labor Code section 132a, which prohibits retaliation against an employee who files a worker's compensation claim.

The one-year statute of limitations for violations of the Fair Employment and Housing Act (FEHA) does not apply to a common law claim for wrongful termination. Instead, the two-year limitations period under Code of Civil Procedure section 335.1 applies.

If the complaint had not adequately alleged the wrongful termination claim, the trial court would have abused its discretion in rejecting Prue's request for leave to amend.

The opinion is available here. 

Cal. DOJ v. CalPERS: Court of Appeal Rules on Public Employee Disability Retirement and Reinstatement Issues

Just to note this case for our colleagues who do public entity work.

California Department of Justice v. Board of Administration of California Public Employees’ Retirement System (Resendez) (10/13/15) --- Cal.App.4th --- discusses the following issues:

Appellant California Department of Justice (DOJ) appeals from a judgment in favor of respondents Angelita Resendez and Board of Administration of California Public Employees’ Retirement System (CalPERS) in this action concerning reinstatement to a peace officer position following disability retirement. On appeal, it is undisputed that Resendez is no longer incapacitated for duty based on the orthopedic condition that led to her disability retirement. DOJ contends: (1) in determining whether Resendez was still physically or mentally incapacitated for duty, CalPERS should have verified Resendez was not suffering from any other condition that would prevent her from meeting the minimum standards for peace officers set forth in Government Code section 10312 ; (2) DOJ does not have a mandatory duty under section 21193 to reinstate an employee that CalPERS determines is no longer incapacitated; and (3) DOJ may condition an offer of reinstatement under section 21193 on compliance with the standards of section 1031. We conclude CalPERS properly made its reinstatement determination based on the condition for which Resendez received disability retirement, DOJ has a mandatory duty to reinstate Resendez after CalPERS concludes she is no longer incapacitated, and DOJ may not require Resendez to comply with conditions prior to reinstatement. 

The opinion is available here.

Higgins-Williams v. Sutter Medical: Employee's Inability to Work under Particular Supervisor Because of Stress Related to Standard Oversight Does Not Constitute Disability under FEHA

In Higgins-Williams v. Sutter Medical Foundation (5/26/15) --- Cal.App.4th ---, the plaintiff, Higgins-Williams, complained to her employer, Sutter, that she suffered stress from interactions with her supervisor and Sutter's HR department. Her physician diagnosed her with adjustment disorder with anxiety, placed her on intermittent leave, and stated that she could return to work without limitation if transferred to a different department. After several months of leave, Sutter advised Higgins-Williams that it would terminate her, unless she provided information as to (1) when she could return to work and (2) whether additional leave as an accommodation would effectuate her return to work. She did not supply the information, and Sutter terminated her.

Higgins-Williams sued, alleging disability discrimination, CFRA, and wrongful termination claims. The trial court granted Sutter's motion for summary judgment on all claims, and the Court of Appeal affirmed, holding as follows:

Higgins-Williams did not suffer from a disability as defined in the FEHA and could not prevail on her FEHA or wrongful termination claims. "An employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a disability under FEHA."

Higgins-Williams also could not prevail on her CFRA claims because she exhausted her available CFRA and FMLA leave, and Sutter granted her an additional five months of leave thereafter. Higgins-Williams's testimony that she didn't think she could have returned to work but would have tried failed to raise a genuine issue of material fact that Sutter failed to reinstate her following leave.

Finally, Higgins-Williams also could not prevail on her claim that Sutter wrongfully terminated her for asserting her CFRA rights. The evidence showed that Sutter had a legitimate business reason for terminating Higgins-Williams, and Higgins-Williams failed to raise a genuine issue of material fact as to whether that reason was pretextual.

The opinion is available here. 

Nealy v. City of Santa Monica: Court of Appeal Affirms Summary Judgment in Disability Discrimination Case

In Nealy v. City of Santa Monica (1/1/15) --- Cal.App.4th ---, the plaintiff, Tony Nealy, worked for the City of Santa Monica as a "solid waste equipment operator" in the City's recycling facility. Nealy injured his right knee on the job in 2003. He underwent two knee surgeries and did not return to work until May, 2005. In July, 2005, Nealy met with the City's accommodations committee and was assigned to work as a groundskeeper. 

Nealy suffered additional on-the-job injuries in August, 2006. Two weeks later, his doctor cleared him to perform "light duty, semi-sedentary office work," but stated that if no such work was available, Nealy should be considered temporarily totally disabled. The City had no such position available, and Nealy did not return to work. 

Nealy met with the City's accommodations committee in 2008 and again in 2010 and asked to be moved back to his old job of solid waste equipment operator. The City declined, stating that Nealy could not perform the essential functions of the position, with or without accommodation. 

The City told Nealy that it would consider him for any vacant position for which he was qualified that was not a promotion. It told him of three such positions and told him how to find additional open positions. Nealy applied for one such position, but did not qualify. Later in 2010, the City told Nealy that it could not provide him with an accommodation into an alternative position because he was not qualified for the only available position that would not be a promotion. 

Nealy filed his complaint with the DFEH and obtained his right-to-sue notice in January, 2011. He filed suit in February, 2011, alleging disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, and retaliation. The Superior Court granted the City's motion for summary judgment, and the Court of Appeal affirmed, holding as follows: 

The trial court properly held that the statute of limitations prevented Nealy from recovering for acts prior to January, 2010, and Nealy failed to show that the continuing violation doctrine applied:

He makes no attempt to show how the City's acts from August 2006 to 2010 were "sufficiently similar in kind," that they "occurred with reasonable frequency," or that the pre-2010 acts did not "acquire[] a degree of permanence" before 2010.

Nealy could not prevail on his cause of action for failure to provide reasonable accommodation because the undisputed evidence showed that he could not perform all of the essential functions of a solid waste equipment operator, with or without reasonable accommodation. Even if Nealy were correct that one of the essential functions identified by the City was not in fact "essential," he did not show that he could perform a number of other essential functions, with or without accommodation.

Nealy could not request that the City accommodate his disability by removing one or more of these essential functions from his responsibility. Removing an essential function from a position would not be a reasonable accommodation.

While Nealy could have requested that the City move him to a comparable position as a reasonable accommodation, Nealy presented no evidence that the City had any comparable positions for which he was qualified during the statutory time period at issue. Further, the City had no duty to provide Nealy with an indefinite leave of absence until such a position became available.

Because Nealy could not perform the essential functions of the operator position, he was not a qualified individual and could not prevail on his disability discrimination cause of action.

Nealy could not prevail on his cause of action for failure to engage in the interactive process because he failed to identify any reasonable accommodation that would have allowed him to do his job. His argument that the City should have retrained him failed because he did not detail what type of retraining would have allowed him to perform the essential functions of his job or a comparable available position. 

Finally, Nealy could not prevail on his retaliation cause of action because requesting reasonable accommodation does not constitute protected activity under the FEHA, and Nealy did not show that he engaged in any other protected activity. 

The opinion is available here.

Kao v. University of San Francisco: Employer Not Required to Enter into Interactive Process before Requiring Fitness-for-Duty Exam

In Kao v. University of San Francisco (8/2/14, pub. 9/2/14) --- Cal.App.4th ---, plaintiff John S. Kao alleged that the University of San Francisco (USF) violated the Fair Employment and Housing Act (FEHA) and other California laws by directing him to have a fitness-for-duty exam (FFD) after faculty members and school administrators reported that his behavior was frightening them, and then terminating his employment when he refused to participate in the examination. He appealed from a judgment against him after jury trial, and the Court of Appeal affirmed, holding as follows:

The law did not require USF to engage in the interactive process because Kao never acknowledged having a disability or sought any accommodation for one.

Unless a disability is obvious, it is the employee’s burden to initiate the interactive process. (Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, 62, fn. 22; 2 Wilcox, Cal. Employment Law (2013) § 41.51[3][b], p. 41-278.) Kao cannot plausibly claim it should have been obvious to USF that he was disabled because he never admitted any disability in the workplace. When a disability is not obvious, the employee must submit “reasonable medical documentation confirm[ing] [its] existence.” (Cal. Code Regs., tit. 2, § 11069, subd. (d)(2).) Kao did nothing of the sort. He provided no information to USF after learning of the university’s concerns other than documents at the October 2008 meeting with [a USF administrator], which were aimed at showing that those concerns were illusory.

Slip op. at 14-15.

USF presented substantial evidence that the FFD was "job related and consistent with business necessity" as required by FEHA, particularly evidence that the FFD was necessary to determine whether Kao posed a danger to others in the workplace. Slip op. at 15-16.

USF did not violate the Unruh Act's prohibition against disability discrimination because "[t]he evidence did not as a matter of law establish that USF had a discriminatory motive in keeping Kao away from campus." Slip op. at 16-17. 

The opinion is available here.

Weaving v. City of Hillsboro: Police Officer's ADHD Did Not Constitute Disability Under ADA

In Weaving v. City of Hillsboro, ___ F.3d ___ (8/15/14), a police officer, Weaving, sued his police department and the City of Hillsboro (City), alleging that it terminated him in violation of the Americans with Disabilities Act (ADA) because of problems associated with his attention deficit hyperactivity disorder (ADHD). A jury returned a verdict in his favor, and the City appealed from the ensuing judgment. The Ninth Circuit reversed. 

The Court first reviewed the applicable law under the ADA: 

The ADA forbids discrimination against a “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). A disability is “a physical or mental impairment that substantially limits one or more major life activities of [the] individual [who claims the disability],” or “a record of such an impairment,” or “being regarded as having such an impairment.” Id. § 12102(1). The ADA provides a nonexhaustive list of “major life activities.” Such activities include “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. § 12102(2)(A).

Slip op. at 12-13. 

The Court then held that substantial evidence did not support the judgment. 

Weaving alleged that his ADA substantially limited both his working and his interacting with others. Although both working and interacting with others constitute "major life activities," Weaving did not present substantial evidence to show that his ADHD substantially limited either (1) his ability to work compared to “most people in the general population" or (2) his ability to interact with others. Slip op. at 14-18. Weaving's ADHD may have limited his ability to get along with others, but that did not mean that it limited ability to interact with others. Slip op. at 17.

The opinion is available here.

Salas v. Sierra Chemical: Federal Immigration Law Preempts -- In Part -- FEHA Action By Unauthorized Worker; After-Acquired Evidence and Unclean Hands Are Not Complete Defenses in Such Actions

Salas v. Sierra Chemical Co. considers the impact of an employee using false documents to obtain employment in the context of an action for violation of the Fair Employment and Housing Act (FEHA).

Plaintiff Vicente Salas applied for work with defendant Sierra Chemical in 2003, providing Sierra with a social security number (SSN). In late 2004 or early 2005, Sierra received a "no match" letter from the Social Security Administration (SSA), stating that Salas's name and number did not match SSA's records. Sierra continued to employ Salas. In 2006, after injuring his back twice at work, Salas filed for workers compensation benefits. Later that year, he was laid off.

Salas sued Sierra for disability discrimination and retaliation in violation of FEHA. After Salas filed a motion in limine stating that he would not answer questions regarding his immigration status, Sierra investigated and found that Salas had used another person's SSN to obtain employment. The trial court granted summary judgment for Sierra, and Salas appealed. The Court of Appeal held that both the doctrine of after-acquired evidence and the doctrine of unclean hands barred Salas's claims. (Court of Appeal decision discussed here.)

On review, the California Supreme Court held as follows: 

Federal Preemption

The federal Immigration Reform and Control Act (IRCA) does not preempt the FEHA generally, nor does it preempt California's Senate Bill No. 1818, which provides in part: 

All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state. 

Government Code section 7285 (emphasis added). However, the IRCA does bar an award of lost pay damages for any period of time after an employer discovers that an employee is not eligible for employment under the IRCA.  

Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 127 (NLRB could not “award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud”) does not answer the preemption question here because it does not address federal preemption of state antidiscrimination laws. Slip op. at 9-11. 

Express preemption does not apply because IRCA does not expressly preempt FEHA or Senate Bill 1818. Slip op. at 12-13. 

Field preemption also does not apply because the federal interest in regulating employment of unauthorized aliens is "not so dominant as to preclude state laws on the same subject," and the federal regulation imposed by IRCA "is not so pervasive as to leave no room for any state law on the same subject." Slip op. at 13-14. 

However, conflict preemption -- "which occurs when state law conflicts with federal law either because compliance with both laws is impossible or because state law is an obstacle to 

achieving the federal law's objectives" -- does apply, at least in part. Slip op. at 15-19. 

IRCA preempts "any state law award that compensates an unauthorized alien worker for loss of employment during the [period after an employer discovers that an employee is ineligible to work] because such an award would "impose liability on an employer for not performing an act (continuing to employ a worker known to be an unauthorized alien) expressly prohibited by federal law." Slip op. at 15. Not answered is whether this analysis applies to situations where an employer knowingly hires an unauthorized alien. Slip op. at 15-16 fn. 3. 

IRCA does not preempt an award that compensates an unauthorized alien worker for loss of employment during the period before an employer discovers that an employee is ineligible to work. Slip op. 16. 

After-Acquired Evidence

The after-acquired evidence doctrine "refers to an employer's discovery, after an allegedly wrongful termination of employment or refusal to hire, of information that would have justified a lawful termination or refusal to hire." Slip op. at 21. 

The after-acquired evidence doctrine is not "a complete defense to claims of retaliation and disability discrimination brought under the FEHA." Slip op. at 24. Instead, application of the after-acquired evidence doctrine requires courts to take into account "both the employee's rights and the employer's prerogatives" on a case-by-case basis. Slip op. at 25. 

Generally, the employee's remedies should not afford compensation for loss of employment during the period after the employer's discovery of the evidence relating to the employee's wrongdoing. When the employer shows that information acquired after the employee's claim has been made would have led to a lawful discharge or other employment action, remedies such as reinstatement, promotion, and pay for periods after the employer learned of such information would be “inequitable and pointless,” as they grant remedial relief for a period during which the plaintiff employee was no longer in the defendant's employment and had no right to such employment. 

The remedial relief generally should compensate the employee for loss of employment from the date of wrongful discharge or refusal to hire to the date on which the employer acquired information of the employee's wrongdoing or ineligibility for employment. Fashioning remedies based on the relative equities of the parties prevents the employer from violating California's FEHA with impunity while also preventing an employee or job applicant from obtaining lost wages compensation for a period during which the employee or applicant would not in any event have been employed by the employer. In an appropriate case, it would also prevent an employee from recovering any lost wages when the employee's wrongdoing is particularly egregious. 

Slip op. at 25-26. 

Applying the after-acquired evidence doctrine to the present case, the Supreme Court reversed the trial court's grant of summary judgment in favor of Sierra because the evidence could support a finding that Sierra continued to employ Salas after being put on notice of his immigration status. Slip op. at 26. "Such a finding could affect application of the after-acquired evidence doctrine and thus the remedies available to plaintiff employee." Slip op. at 27. 

Unclean Hands

The unclean hands doctrine -- which applies when a plaintiff has acted unconscionably, in bad faith, or inequitably in the matter in which he seeks relief -- is not a complete defense to a claim "based on a public policy expressed by the Legislature in a statute" such as the FEHA. Slip op. at 27. "Nevertheless, equitable considerations may guide the court in fashioning relief in cases involving a legislatively expressed public policy." Ibid.

Salas v. Sierra Chemical Co. is available here. 

Salas v. Sierra Chemical: Court Schedules Oral Argument In Undocumented Worker Case

In Salas v. Sierra Chemical Co. (Supreme Court Case No. S196568, docket here), the California Supreme Court will consider whether an employee's use of a false social security number to obtain employment prevents the employee from later suing his employer for disability discrimination. The issues stated:

Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance?  

Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.) 

On February 27, the Court asked the parties to address an additional issue:

Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of "state labor and employment laws" (Lab. Code § 1171.5; Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB(2002) 535 U.S. 137.)

The Court has scheduled Salas for oral argument on Wednesday, April 2, 2014, at 9:00 a.m., in Los Angeles. The Court's decision will be due 90 days later, or July 1, 2014.

We are working to bring you a Watch List webinar on the decision shortly after it comes down. 

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. 

Smith v. Clark County School District: ADA Plaintiff May Avoid Summary Judgment by Explaining Contradictory Statements In Applications for Disability Benefits

In Smith v. Clark County School District, ___ F.3d ___ (9th Cir. 8/21/13), Jacqlyn Smith worked for a school district, first as a teacher and then as a literary specialist. After aggravating a back injury, Smith applied for medical leave and disability benefits. 

On Smith's application for leave under the Family and Medical Leave Act (FMLA), Smith's doctor stated that Smith was “presently incapacitated” and could not “work at all until released by [a] doctor.” On her application for private disability benefits, Smith stated that her “dates of total disability” ranged from March 31, 2008, to “Not Sure.” On Smith's application for disability retirement under the Nevada Public Employees’ Retirement Systems (PERS), Smith's doctor certified that Smith was “unable to work due to injury or mental or physical illness.” 

At the same time, Smith and the district engaged in negotiations over whether and how she could return to work. Smith contended that she could not work as a teacher, but could work as a literary specialist. The district contended that it could not put her back into a literary specialist position, but offered a teaching position with accommodations. Smith ultimately resigned so that she could receive PERS disability retirement benefits. 

Smith sued the district in federal court, alleging that it violated the Americans with Disabilities Act (ADA) by discriminating against her and not providing reasonable accommodation. The district moved for summary judgment, asserting (1) that Smith was not a “qualified individual” under the ADA because she had represented on her applications for disability benefits that she was permanently disabled; and (2) that the district did not deny Smith a reasonable accommodation. The district court ultimately granted summary judgment, and Smith appealed. 

The Ninth Circuit reversed the judgment. It held that, in deciding whether Smith was a “qualified individual” under the ADA, the district court improperly applied the framework set forth in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), for analyzing the effect of inconsistent statements on applications for disability benefits. Slip op. at 9-11. Relying on Cleveland, the Court first determined that Smith's claims for FMLA leave, private insurance benefits, and PERS disability retirement did not inherently conflict with her ADA claim because they did not account for her ability to work with reasonable accommodation. Slip op. at 11-13. 

However, because Smith had made "certain statements" that "appear to conflict" with her ADA claim, the Court next considered whether Smith had met her burden of explaining these inconsistencies. Slip op. at 13-15. Looking at the facts in the light most favorable to the plaintiff, and considering that "Cleveland’s sufficient-explanation standard is not an exceedingly demanding one," the Court concluded that Smith "gave sufficient explanations for the inconsistencies between her ADA claim and her PERS and FMLA applications to survive summary judgment." Slip op. at 16. 

Smith v. Clark County School District is available here. 

Acuna v. San Diego Gas & Electric: Court Rules On Statute Of Limitations For FEHA, Common Law Claims

Acuna v. San Diego Gas & Electric Co. (6/19/13, pub. 7/18/13) --- Cal.App.4th ---, addresses statute of limitations issues in the context of an ongoing employment relationship and the filing of three separate DFEH complaints: 

3/16/06: Esperanza Acuna files first DFEH complaint against San Diego Gas & Electric (SDG&E), alleging racial discrimination, harassment, and retaliation for having filed a worker's compensation claim.  

3/27/06: DFEH issues first right to sue letter (RTS).  

2/23/07: Acuna files second DFEH complaint, alleging disability discrimination.   

2/19/08: DFEH issues second RTS. 

7/11/08: SDG&E terminates Acuna's employment.  

10/23/08: Acuna files third DFEH complaint, alleging various wrongful acts, including her alleged retaliatory termination.  

11/7/08: DFEH issues third RTS.  

11/5/09: Acuna files suit. 

The trial court sustained SDG&E's demurrer without leave to amend, finding that her claims were time barred. The Court of Appeal affirmed in part and reversed in part, holding: 

Acuna's disability discrimination claim was barred because she did not file suit within one year of receiving her 2008 RTS. Acuna alleged disability discrimination in her second DFEH complaint and received her RTS on that issue more than one year before she filed suit. "By retaining counsel and filing a DFEH complaint, Acuna manifested an understanding that further attempts at informal, rather than formal, resolution of the disability accommodation process would not be successful and were futile." Slip op. at 16. 

The continuing violations doctrine did not apply, as, under the facts alleged, "no reasonable employee would have believed that further efforts at informal conciliation would be successful." Slip op. at 17. 

The equitable tolling doctrine also did not apply, as Acuna did not allege "any facts showing she was pursuing an alternate remedy that excused her from timely filing her administrative claim and/or from filing her lawsuit." Slip op. at 19. 

Acuna's disability discrimination claim was barred because she did not file suit within one year of receiving her 2006 RTS. The alleged racial discrimination took place years before Acuna filed suit, and she did not allege facts giving rise to the continuing violations doctrine or the equitable tolling doctrine. Slip op. at 20-21. 

Acuna's retaliation claim was timely. Acuna alleged that SDG&E terminated her on 7/11/08 in retaliation for protected conduct. She filed a timely DFEH complaint 10/23/08, less than one year after her termination. She received her RTS on 11/7/08, and filed suit on 11/5/09, less than one year later.  Slip op. at 21-24. 

Acuna's claim for wrongful termination in violation of public policy was "tethered to" her FEHA retaliation claim and also was timely. Slip op. at 24-25.  

Acuna's claims for breach of contract and breach of the covenant of good faith and fair dealing failed because Acuna did not provide factual information to overcome the presumption of at-will employment. Slip op. at 25-28. 

The opinion is available here. 

Sanchez v. Swissport: Employer's Compliance With PDLL Does Not Invalidate Employee's Causes of Action Under Other Provisions of the FEHA

In Sanchez v. Swissport, Inc. (2/21/13) --- Cal.App.4th ---, the Court of Appeal has held that an employee who has exhausted all of her leave under the Pregnancy Disability Leave Law (PDLL) may nevertheless state a cause of action under other provisions of the Fair Employment and Housing Act (FEHA).

Sanchez sued her former employer, Swissport, alleging, inter alia, that it violated California law by terminating her because she could not return to work after taking just over 19 weeks in accrued vacation, CFRA leave, and PDLL leave. The trial court sustained Swissport's demurrer without leave, and the Court of Appeal reversed.

After reviewing the basics of the PDLL and the FEHA, the Court held that the PDLL's "remedies augment, rather than supplant, those set forth elsewhere in the FEHA." Slip op. at 8.

In short, we conclude the superior court erred in sustaining the demurrer on the ground that appellant had no actionable claim under the FEHA because respondent had provided her with 19 weeks of leave under the PDLL.

Slip op. at 12. 

The opinion is available here. 

Salas v. Sierra Chemical: Supreme Court Orders Additional Briefing on Remedies Available to Undocumented Workers

In Salas v. Sierra Chemical Co. (Case No. S196568), the California Supreme Court will consider whether an employee's use of a false social security number to obtain employment prevents the employee from later suing his employer for disability discrimination. The issues stated:

Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance?  

Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.) 

On February 27, the Court asked the parties to address an additional issue:

Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of "state labor and employment laws" (Lab. Code § 1171.5; Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.) 

I take this as a sign of Justice Liu's influence on the Court.  Maybe I'm reading too much into this, but it reminds me of his focus on available remedies at the Harris v. City of Santa Monica oral argument, and I believe that he is likely the one turning the Court's focus to the remedies available here.  Very interesting.  

The Court's Case Summary page is here, and Salas is on our watch list.  

Lawler v. Montblanc: Ninth Circuit Affirms Summary Judgment in Disability Discrimination Case

In Lawler v. Montblanc North America, LLC, ___ F.3d ___ (9th Cir. 1/11/13) , the plaintiff filed suit against her employer and its president and CEO for disability discrimination, retaliation, and harassment under the FEHA, as well as common law intentional infliction of emotional distress.  The district court granted summary judgment for the defendants, and the Ninth Circuit affirmed, holding: 

The plaintiff failed to establish a prima facie case of disability discrimination because she was not "competently performing her position," i.e., she could not perform the essential duties of her position,  with or without reasonable accommodation. Slip op. at 12-14. 

Rather, she admitted that her disability makes it impossible for her to fulfill the duties of her position and that she has been unemployed since October 2009, has not applied for any positions, has made no effort to secure employment, and has exhausted her disability benefits. 

Slip op. at 13. 

The plaintiff's inability to perform the essential functions of her position constituted a legitimate reason for her termination, and the plaintiff failed to provide "specific and substantial" evidence that this reason was pretextual.  Accordingly, the plaintiff's retaliation cause of action failed.  Slip op. at 14-16. 

A single incident of “gruff,” “abrupt,” and “intimidating” behavior by the employer's CEO was not "sufficiently severe to constitute a hostile working environment," and the harassment cause of action failed.  Slip op. at 16-18. 

Finally, the CEO's “gruff,” “abrupt,” and “intimidating” conduct could not be characterized as exceeding all bounds of that tolerated in a civilized community, nor was her alleged emotional distress "severe," and her cause of action for intentional infliction of emotional distress failed.  

Interestingly, the plaintiff apparently did not allege failure to engage in the interactive process. See, e.g., Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App. 4th 413.  I won't try to guess how the district court or Ninth Circuit would have ruled on such a claim. 

The opinion is available here.

Furtado v. State Personnel Board: Corrections Dept. Did Not Discriminate Against Officer Who Could Not Perform Essential Functions of Position after Injury

Furtado v. State Personnel Board (1/7/13) --- Cal.App.4th --- is another decision dealing with the essential functions of a police officer. See Lui v. City and County of San Francisco (2012) --- Cal.App.4th --- (discussed here); Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757.

Bruce Furtado worked for the California Department of Corrections and Rehabilitation as a correctional lieutenant. He was classified as a peace officer and was required to certify annually in the use of a baton. Furtado suffered permanent injuries in an auto accident that left him unable to use a baton. The Department concluded that he could not perform the duties of a correctional lieutenant, with or without accommodation, and medically demoted him to a non-peace officer position.

Furtado appealed to the State Personnel Board ("SPB"), contending that the Department had discriminated against him: (1) in denying him reasonable accommodation for his disability; and (2) in medically demoting him. After a hearing, the SPB denied the appeal, concluding that Furtado was not qualified for the correctional lieutenant position, and that the Department properly demoted him to a non-peace officer position.

Furtado then filed a petition for writ of mandate in the Superior Court, which was denied. Furtado appealed that ruling, and the Court of Appeal affirmed, finding: 

1. Substantial evidence supported the PRB's conclusion that Furtado could not perform the essential functions of the correctional lieutenant position because: (a) he could not use a baton to defend himself and others or disarm, subdue, and apply restraints to an inmate (slip op. at 21-25); (b) being proficient with a baton is a reasonable requirement of the position (slip op. at 26-28); (c) no accommodation would allow Furtado to perform these essential functions (slip op. at 28-29). 
2. Reassignment to an "administrative" correctional lieutenant position would not constitute accommodation, but would excuse Furtado from performing all of the essential functions of the position. Slip op. at 29-37.  "A correctional lieutenant must be able to perform the full range of duties, not just the ones to which they are typically assigned." Slip op. at 31. 
3. Substantial evidence supported the PRB's conclusion that the medical demotion was proper because Furtado could not perform the essential functions of the correctional lieutenant position. Slip op. at 38-40. 

The opinion is available here. 

Lui v. City and County Of San Francisco: Court Of Appeal Affirms Finding That Strenuous Field Duties Were An Essential Function Of Police Department's Administrative Positions

In Lui v. City and County of San Francisco (12/11/12) --- Cal.App.4th ---, a police officer who had suffered a major heart attack retired after the SFPD told him it had no positions available that did not require him to perform the strenuous physical duties regularly performed by patrol officers in the field, known as the "EJF List" of duties. The officer filed suit for violation of the FEHA (disability discrimination, failure to accommodate, failure to prevent discrimination, retaliation, and refusal to engage in the good faith interactive process). The trial court granted summary adjudication of the retaliation claim and entered judgment on the remaining claims after a bench trial. The officer appealed, arguing that the trial court erred in finding that strenuous field duties are essential functions of the administrative positions he sought.

The Court of Appeal affirmed, holding:

[T]he evidence supports the trial court's finding that, even though officers in administrative positions are not frequently required to engage in such activities, the strenuous duties are essential functions of the positions because the Department has a legitimate need to be able to deploy officers in those positions in the event of emergencies and other mass mobilizations.

Slip op. at 2. 

The Court did not decide who bore the burden of proving the position’s essential functions. "[E]ven if defendant bore the burden of proving the duties in the EJF List are essential functions of the administrative positions plaintiff seeks, the trial court’s findings are supported by substantial evidence...." Slip op. at 11. 

On the critical issue, the Court held as follows:

[T]he evidence shows the duties in the EJF List are essential functions of the administrative positions at issue in the present case because there are a limited number of officers available to the Department to perform those functions. (§ 12926(f)(1)(B).) Because the Department only has a limited number of full duty officers, for each officer in a modified-duty assignment, there is one less officer available to be deployed in an emergency. 

***  

The evidence further showed that the Department needs to be able to mobilize as many full duty police officers as possible to respond to mass celebrations, demonstrations, and earthquakes and other large-scale emergencies, during which the officers would be required to perform the types of duties listed in the EJF List. 

Slip op. at 13-14. The Court "declined to second-guess" the Department's determination that all officers needed to be able to perform the EJF functions. Slip op. at 17. 

The Court distinguished Cripe v. City of San Jose, 261 F.3d 877 (9th Cir. 2001), on grounds that the defendant there failed to show that the reassignment of a relatively small number of officers to administrative-only assignments would impact its ability to respond to emergencies. Slip op. at 20-23. 

The Court distinguished Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, on grounds that the defendant there "had a longstanding policy and practice of allowing sworn officers to perform 'light duty' assignments that did not entail several essential functions of a peace officer such as making arrests, taking suspects into custody, and driving a police vehicle in emergency situations." Slip op. at 23. 

Cuiellette supports the proposition that employers must provide accommodations into permanent light-duty assignments if such assignments exist; Cuiellette does not support the proposition that employers are required to create permanent light-duty assignments to accommodate disabled employees. 

Slip op. at 24. 

Finally, the Court found that substantial evidence supported the trial court’s finding that the plaintiff could not perform the duties in the EJF List. Slip op. at 27-28. 

The opinion is available here. 

Salas v. Sierra Chemical: Court of Appeal Affirms Summary Judgment in Disability Discrimination Action on Basis of Immigration Status; Cal. Supreme Court Grants Review

I'm cleaning up some older cases that I never got to.

In Salas v. Sierra Chemical Co. (8/9/11) 198 Cal.App.4th 29, the Court of Appeal affirmed a trial court order granting summary judgment in a disability discrimination action.

Vicente Salas sued his former employer, Sierra, for disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and denial of employment in violation of public policy. Specifically, Salas alleged that Sierra Chemical failed to make reasonable accommodation for his disability and failed to engage in an interactive process to determine such a reasonable accommodation. He also alleged that Sierra denied him employment to punish him for filing a claim for workers' compensation benefits, and to intimidate and deter him and others from bringing such claims. 

Prior to trial, Salas filed a motion in limine stating that he would assert his Fifth Amendment right against self-incrimination in response to any questions concerning his immigration status. Sierra apparently then discovered that his Social Security number belonged to someone else. Sierra moved for summary judgment, arguing that the after-acquired evidence doctrine barred Salas's causes of action because there was no genuine factual dispute concerning: (1) his use of a counterfeit Social Security card with another person's Social Security number in order to secure employment; and (2) that Sierra would not have hired him had it known that he was using a counterfeit Social Security card. Sierra also claimed the unclean hands doctrine barred his causes of action because the misrepresentation of his eligibility to work in the United States and fraudulent use of another person's Social Security number amounted to inequitable conduct that directly related to his causes of action. 

In opposition to the motion, Salas declared that Sierra knowingly employed a number undocumented workers, a number of whom had received Social Security "no match" letters while employed by Sierra. Salas declared that his supervisor told him and others that they "need not worry about any discrepancies with Social Security numbers... [and that] as long as [defendant] remained happy, he would not fire us over a discrepancy with a Social Security number." Salas also declared that he "never heard of Sierra Chemical discharging any person due to a discrepancy with a Social Security number, or for any other immigration-related issue." 

The trial court (San Joaquin Superior, Judge Elizabeth Humphreys) originally denied the motion, but the Court of Appeal issued an order directing the court either to grant the relief requested or show cause why it should not be granted. The trial court granted the relief, and Salas appealed. 

The Court of Appeal affirmed. It held that Sierra produced evidence that the SSN did not belong to Salas and that it had "a long-standing policy" that "precludes the hiring of any applicant who submits false information or false documents in an effort to prove his or her eligibility to work in the United States." The Court held that Salas failed to raise a triable issue of fact in opposition: 

Salas also claims that he raised a triable issue of fact with respect to Sierra Chemical's policy of refusing to hire applicants who submit a false Social Security number. We are not persuaded. Unlike [Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833], where plaintiff submitted direct evidence that the company knowingly hired undocumented aliens and took no steps to discharge them, Salas submitted mere speculation. According to his declaration, he and several other employees had an informal meeting with Huizar to discuss the letters they received from the Social Security Administration. Huizar told the employees that Kinder “was happy with [their] work and that as long as he remained happy, he would not fire [them] over a discrepancy with a Social Security number.” In order to find a triable issue of fact, we would have to draw the inference that Sierra Chemical did not have a settled policy of refusing to hire an applicant who submits a false Social Security number from the fact that Huizar told Salas that he would not be fired over a discrepancy with a Social Security number. However, as Salas himself observed in his opposition to the summary judgment motion, a discrepancy with a Social Security number could be caused by typographical errors, unreported name changes, or inaccurate or incomplete records. Thus, the fact that Sierra Chemical would not fire him over a discrepancy with a Social Security number is not inconsistent with Kinder's declaration that Sierra Chemical had a settled policy of refusing to hire applicants who submit a false Social Security number.  

198 Cal.App.4th at 38-39. The Court also held that Salas's claims were barred by the unclean hands doctrine:

Similarly, here, Salas's use of another person's Social Security number to obtain employment with Sierra Chemical went to the heart of the employment relationship and related directly to his claims that Sierra Chemical wrongfully failed to hire him following his seasonal lay off and discriminated against him by failing to provide a reasonable accommodation for his back injury. Because Salas was not lawfully qualified for the job, he cannot be heard to complain that he was not hired. This is so even though he alleges that one reason for the failure to hire was Sierra Chemical's unwillingness to accommodate his disability.  

198 Cal.App.4th at 45. 

The opinion is available here. 

On November 16, 2011, the California Supreme Court granted review (Case No. S196568). The Court stated the issues as follows: 

Did the trial court err in dismissing plaintiff's claims under the Fair Employment and Housing Act (Gov. Code § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff's use of false documentation to obtain employment in the first instance? 

Did Senate Bill No. 1818 (2001-2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code § 3339; Gov. Code § 7285; Health & Saf. Code § 24000; Lab. Code § 1171.5.) 

The Court's Case Summary page is here. I have added the case to our watch list.