Jeffrey D. Polsky
Partner Fox Rothschild LLP
Labor & Employment
345 California St Ste 2200
San Francisco , CA 94104-2731
Phone: (415) 364-5540
Fax: (415) 391-4436
Email: jpolsky@foxrothschild.com
UC Hastings
Jeffrey cochairs the firm's Labor and Employment Department
In 2019, disability discrimination claims were among the most frequently filed employment discrimination claims in California and nationwide. Cases decided in 2019 continue to answer questions as to what is a disability, what's expected of employers in terms of reasonable accommodation, and how to litigate these issues.
What Constitutes a Disability?
McCormick v. Public Employees' Retirement System, 41 Cal. App. 5th 428 (2019) -- A county appraiser had pain, dizziness and other symptoms that seemed to be caused by her office environment. When the employer denied her request to transfer to a different location, she applied for disability retirement. California Public Employees' Retirement System denied her application, arguing that she should be able to work at a different location. The employee took a writ.
The appellate court focused on the employee's actual workplace, rather than some hypothetical location where she could have worked. If her employer required her to work at this location, and she was unable to do so due to her disability, she was eligible for disability retirement. Stated differently, a defendant cannot argue that an employee is able to perform the essential functions of a position with reasonable accommodation, if the employer has not offered that accommodation.
Ross v. County of Riverside, 36 Cal. App. 5th 580 (Ct. App. 4th Dist. 2019) -- A former deputy district attorney sued for retaliation and disability discrimination. The employee had concussion syndrome stemming from prior military service and was to be tested for more serious neurological disease. While awaiting test results, he requested a position with "no stress, no quotas, no deadlines, no pressure." A position was offered, which he declined, and he later resigned, claiming constructive termination.
The trial court granted summary judgment for the employer saying that there was no evidence of a disability. According to the trial court, the evidence showed that plaintiff was being tested for possible neurological disease, but he never specified a disorder or described specific impairments and the test results were negative.
The appellate court reversed. A physical disability may be temporary or short term and includes impairments that are potentially disabling or are perceived as either disabling or potentially disabling. The employee informed his employer that he had neurological symptoms and had repeated absences for medical appointments. This was sufficient to raise a triable issue as to whether the employee was disabled or was perceived as disabled.
Valtierra v. Medtronic Inc., 934 F.3d 1089 (9th Cir. 2019) -- Valtierra sued claiming his employer terminated him because of his morbid obesity. On summary judgment, the district court ruled that morbid obesity does not qualify as a disability under the Americans with Disabilities Act unless it is caused by an underlying physiological condition. The 9th Circuit had not decided the issue, but the 2nd, 6th, 7th and 8th U.S. Circuit Courts of Appeals had reached the same conclusion as the district court.
The employee appealed and the 9th Circuit again declined to decide the issue. Instead, it held that even assuming the plaintiff's morbid obesity qualifies as a disability, there was no material dispute that he suffered an adverse employment action because of his disability. Medtronic terminated Valtierra after discovering he had falsely claimed to have completed 12 maintenance assignments. There was no material dispute that this legitimate nondiscriminatory reason for his termination was pretext for disability discrimination, as: (1) Valtierra was morbidly obese for his entire 10-year career at Medtronic and he did not previously experience any alleged discrimination, and (2) there was no evidence that similarly situated employees who were not obese were treated differently.
Kailikole v. Palomar Community College District, 384 F.Supp.3d 1185 (S.D. Cal. 2019) -- The college placed an academic dean on paid leave without explaining the basis for the decision. She sued claiming retaliation and disability discrimination under the ADA and the Fair Employment and Housing Act. The employer moved to dismiss the claims on the ground that her anxiety does not qualify as a disability. The trial court denied the motion to dismiss. Kailikole alleged that her anxiety caused her to feel overwhelmed, helpless and nervous, and that she suffered from panic attacks, vertigo and cysts, which was sufficient at the pleading stage to qualify as a mental impairment. The court also rejected the employer's argument that Kailikole's anxiety was due entirely to a particular supervisor's oversight of her job performance, which would not constitute a disability under the FEHA.
Reasonable Accommodations/ Interactive Process
Garcia v. Salvation Army, 918 F.3d 997 (9th Cir. 2019) -- The employer granted a medical leave to a social services coordinator with fibromyalgia. The employer extended the leave when the employee's doctor recommended she not return to a stressful working environment. After her doctor released her to return to work without restrictions, she declined to return due to stress she attributed to a customer complaint against her. She requested a copy of the complaint as an "accommodation." The Salvation Army requested medical evidence supporting her continuing disability and proposed accommodation, which she did not provide. The Salvation Army did provide a summary of the complaint, but the employee demanded a copy of the complaint itself and refused to return to work. At that point, the Salvation Army terminated her employment.
The trial court granted summary judgment for the employer on the plaintiff's ADA claim for wrongful termination. The 9th Circuit affirmed, holding that the employer engaged in the interactive process by extending her medical leave as requested. The duty to engage further in the interactive process ended once the employee was no longer able to provide any medical evidence of a continued disability, after her doctor cleared her to return to work without restrictions.
Disability Discrimination
Murray v. Mayo Clinic, 934 F.3d 1101 (9th Cir. 2019) -- The Mayo Clinic fired a physician (Dr. Murray) over an altercation with another doctor as a patient was being prepped for surgery. Dr. Murray did not dispute that he grabbed, pushed, and screamed at the other doctor. Still, Dr. Murray sued for wrongful discharge under the ADA, alleging that the clinic regarded him as having a disability that made it difficult for him to concentrate and control his anger. (He denied having a disability.) The trial court instructed the jury that the employer could only be liable if disability discrimination was the "but-for" cause of the termination, rejecting the employee's proposed "motivating factor" causation instruction. The jury granted a defense verdict and Dr. Murray appealed.
The 9th Circuit affirmed, holding that the ADA requires a showing of "but-for" causation: An employee must prove that, but for disability discrimination, the employer would not have taken the adverse employment action. In doing so, the three-judge panel overruled prior circuit authority, Head v. Glacier Northwest, Inc., 413 F.3d 1053 (9th Cir. 2005). It did so based on two intervening Supreme Court decisions that were "clearly irreconcilable" with the reasoning in Head: Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009), and University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013). In each case, the Supreme Court rejected the reasoning relied upon in Head, noting that Title VII was expressly amended to authorize employment discrimination claims where race, color, religion, sex or national origin were motivating factors in an adverse employment action, and that anything omitted from that list -- including retaliation claims and discrimination based on age or disability -- was intentionally excluded by Congress, such that the "but-for" causation standard must apply.
Summary Judgment
Glynn v. Superior Court, 42 Cal. App. 5th 47 (Ct. App. 6th Dist. 2019) -- Glynn, a pharmaceutical sales representative, was required to drive to doctors' offices to promote his employer's products. He took a medical leave of absence for a serious eye condition and was released to return to work in a job that did not involve driving. Glynn applied for open positions that did not require driving, but the company never reassigned him. Instead, a temporary benefits department employee sent him a termination letter, based on the mistaken belief that this was required once the employee becomes eligible for long-term disability benefits. In fact, the employer's policy did not require termination until the benefits were approved. Glynn did not apply for LTD benefits and indisputably could have returned to work with reasonable accommodations. He emailed the HR department immediately to protest the mistaken decision to terminate him, but he was not reinstated.
Glynn sued claiming disability discrimination and retaliation under the FEHA. The employer successfully moved for summary judgment of those claims. Glynn petitioned for writ of mandate, which was granted. The Court of Appeal held that the McDonnell Douglas burden-shifting framework does not apply when the employee presents direct evidence of a discriminatory motive. The plaintiff is not required to prove animosity or bad faith conduct by the employer, as the FEHA protects an employee from mistaken beliefs about the disability. Glynn produced direct evidence that he was terminated because of the temporary benefits department employee's mistaken belief that he was unable to work because of his disability, which is sufficient to defeat summary adjudication on the disability discrimination claim.
The Court of Appeal also reversed the summary adjudication on the retaliation claim, as Glynn presented evidence that he was terminated two months after he complained to the employer about failing to accommodate his disability. The Court of Appeal explained that temporal proximity is sufficient to make out a prima facie case of retaliation, and the employer failed to articulate a nondiscriminatory reason for the termination.
Matthews v. Amtrak National Railroad Passenger Corp., 402 F.Supp.3d 930 (E.D. Cal. 2019) -- Matthews worked at Amtrak for about 20 years, most recently selling tickets and helping with baggage. After failing a drug test at work, Matthews enrolled in a voluntary drug rehabilitation program that required him to submit to random drug tests at least four times a year for two years. When he was unable to provide a urine sample during one such test, he was sent to see a doctor for a "shy bladder examination," which determined that he had a medical justification for not completing the test. Several months later, he was again unable to provide a urine sample and was sent to a different doctor for a shy bladder examination.
Matthews had a history of renal disease and a catheter in his abdomen for dialysis. His regular doctor said his catheter should be handled with a glove and mask. When he asked the employer's doctor to do so, he refused and ended the exam. Amtrak terminated Matthews on the ground that he refused to submit to the drug test.
Matthews sued for wrongful termination under the ADA and the FEHA. The court denied summary judgment on the disability discrimination claims because there was a material factual dispute whether Matthews was terminated because of his disability. There was evidence that Amtrak knew of Matthews's catheter and that Matthews would have completed the shy bladder exam but for his concern about the doctor handling the catheter in an unsanitary manner. There was thus a triable issue of fact as to whether his termination for failing to complete the shy bladder exam was caused by his renal disability. The court similarly denied summary judgment on the failure to reasonably accommodate claims, as there was a triable issue of fact that the doctor refused to complete the shy bladder exam in a sanitary manner and Amtrak also refused to allow Mr. Matthews to take a blood test as an accommodation. The court denied summary judgment on the failure to engage in the interactive process claims on similar grounds.
What Lies Ahead?
Courts and legislatures continue to take expansive views on what constitutes a disability. In addition, many employers still struggle to understand their obligations to accommodate disabled workers. Unlike other types of discrimination that require equal treatment, disability discrimination laws require employers to accept expenses, inefficiencies and other burdens to enable qualified workers to remain employed that they would not accept for non-disabled workers. So for the foreseeable future, there is every reason to expect that these claims will remain popular.