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FEHA claim of pharmaceutical rep fired due to mistaken belief of disability revived

By Kathleen Kapusta, J.D.

“Even a legitimate company policy, if mistakenly applied, may engender FEHA disability discrimination liability,” the appeals court stated.

Even if a temporary benefits department staffer was mistaken in her belief that an employee with a serious eye condition had transitioned from short-term to long-term disability when she fired him, a lack of animus, explained a California appeals court, “does not preclude liability for a disability discrimination claim.” Finding that the employee provided direct evidence of disability discrimination—he was terminated because the staffer mistakenly believed he was totally disabled and unable to work—the court reversed a trial court’s grant of summary adjudication on his FEHA disability discrimination claim. The court also reversed summary adjudication on his claims for retaliation, failure to prevent discrimination, and wrongful termination in violation of public policy (Glynn v. Superior Court of Los Angeles County, November 13, 2019, Currey, B.).

No work. As a pharmaceutical sales rep for Allergan, the employee primarily drove to doctors’ offices to promote his company’s products. In January 2016, he requested a medical leave of absence for myopic macular degeneration. His doctor provided a medical certification stating “no work” because he could not safely drive.

Terminated. While on leave, the employee requested help finding a new position that did not require driving and applied unsuccessfully for several open jobs. In July, the temporary benefits staffer sent him a letter stating “We received notification from Matrix System of your approval for Long Term Disability, effective July 20, 2016. According to the Allergan Family and Medical Leave (AFML) policy, you will no longer be eligible to remain on Inactive Status and your employment has ended on 07/20/16, due to your inability to return to work by a certain date with or without some reasonable workplace accommodation.”

Under Allegan’s actual policy, observed the court, termination is required once an employee has applied, and been approved, for LTD benefits and not, as the staffer believed, once the date the employee becomes eligible for LTD benefits has passed. Not only had the employee not applied for LTD, it was undisputed he could have returned to work with reasonable accommodation.

Lawsuit. Although the employee quickly alerted HR that he had never applied for LTD and could return to work in a job that did not require driving, he was not reinstated. Accordingly, he sued the company for, among other things, disability discrimination and retaliation. HR subsequently contacted him, admitted that he should not have been terminated, and offered to unconditionally reinstate him. Because the company did not identify a specific job, however, the employee rejected the offer. When HR asked him to reconsider, he again refused, stating that he did not believe the offer was in good faith.

Trial court proceedings. Allergan then moved for summary judgment or alternatively, summary adjudication, on all his claims as well as summary adjudication on its failure-to-mitigate damages affirmative defense. The trial court granted summary adjudication in favor of Allergan on the employee’s causes of action for disability discrimination, retaliation, failure to prevent discrimination and harassment, retaliation in violation of Labor Code section 1102.5, wrongful termination/adverse treatment in violation of public policy, and intentional infliction of emotional distress. It also granted Allegan’s motion for summary adjudication on its failure to mitigate defense.

The employee filed a petition for a writ of mandate and the state appeals court issued an alternative writ ordering the trial court to either vacate its summary adjudication order and instead enter a new order denying the motion on the disability discrimination, retaliation, failure to prevent discrimination and harassment, and public policy wrongful termination/adverse treatment claims or show cause why a peremptory writ should not issue. The trial court, however, did not change its order.

Direct evidence. Vacating in part the trial court’s order, the appeals court first found the employee provided direct evidence of disability discrimination. While neither party contended the employee could reasonably be categorized as totally disabled and unable to perform any job at Allergan with or without reasonable accommodation, the benefits staffer mistakenly believed he had transitioned to LTD and thus she erroneously concluded he was unable to work with or without accommodation and fired him. Even assuming her mistakes were reasonable and made in good faith, said the court, that did not preclude liability for disability discrimination. The employee provided direct evidence of disability discrimination and that was enough to defeat summary adjudication of his claim.

Retaliation. As to the employee’s retaliation claim, the appeals court found that several emails he sent to HR sufficiently communicated his belief that he was being treated in a discriminatory manner. Not only was he terminated two months after he complained, there was a disputed fact issue as to whether Allergan acted in good faith in attempting to find a new position for him. Further, while the company knew immediately of the staffer’s error in terminating him, it waited nine months to offer reinstatement. Thus, said the court, a jury could infer the termination was retaliatory.

Further, Allergan did not put forth a legitimate, nondiscriminatory reason for the employee’s termination, said the court, noting that although the staffer was mistaken in her application of the company’s policy, underlying her mistake was an unfounded determination that the employee was completely disabled and unable to work with or without an accommodation. Accordingly, the trial court erred in granting summary adjudication of the employee’s FEHA retaliation claim.

Remaining claims. And because Allergan conceded that the employee’s failure to prevent discrimination and wrongful termination claims were derivative of his FEHA disability discrimination and retaliation claims, the court reversed summary adjudication as to those claims as well. The balance of the trial court’s order, however, was unaffected by its decision, said the appeals court, expressing no view on those claims at this time.