Metropolitan News-Enterprise


Thursday, October 17, 2013


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Court Revives Discrimination Suit by Fired Organ Donor

Panel Says Man Who Says He Was Terminated for Taking Time Off to Give Sister His Kidney Has Viable Claim




The Court of Appeal for this district yesterday partially reinstated a lawsuit by a man who claims his employer fired him rather than grant him leave to donate a kidney to his sister.

Div. One reversed Los Angeles Superior Court Judge Holly Kendig’s dismissal of Scott Rope’s claims for disability discrimination and wrongful termination in violation of public policy. The court agreed with the former employer, however, that Rope cannot sue under a law that entitles some employees to paid leave to serve as organ donors, because he was fired before the law took effect.

Rope alleged that when he joined Auto-Chlor of Washington, Inc., which sells and services commercial dishwashers, as a branch manager in 2010, he told the company he would need a leave in February of the following year to serve as an organ donor. He said he continued to remind the company of his plan.

Donation Protection Act

In November 2010, he said, he learned of a new law, the Michelle Maykin Memorial Donation Protection Act, effective Jan. 1, 2011. The law requires employers of 15 or more persons to grant paid leave to an employee who is unable to work because he or she is serving as an organ donor, with a limit of 30 days in any 12-month period.

Upon learning of the Donation Protection Act, Rope claims, he asked to be granted paid leave, as the doctor told him he would need to miss 30 days of work as a result of the donation process and recovery. Auto-Chlor, he said, ignored his repeated requests for paid leave, even after being informed of the law.

He also told the company, according to the complaint, that he might need special accommodations after returning to work. He alleged that the company eventually approved his leave, but ignored the issue of pay, and fired him two days before the new law took effect.

The ostensible reason for the firing was poor work performance, but Rope alleged that this was a pretext, and that the company wanted both to avoid paying him for the lost time and to avoid having to provide accommodations after he returned.

Rope donated his kidney to his sister as scheduled and filed suit against his former employer six months later.  Kendig sustained a demurrer to Rope’s second amended complaint and dismissed the action.

Three Causes of Action

Justice Jeffrey Johnson, writing for the Court of Appeal, said the complaint stated three causes of action—for wrongful termination; for associational discrimination in violation of Government Code Secs. 12940 and 12926; and for failure to maintain an environment free of discrimination, contrary to Sec. 12940(k).

The code sections are part of the Fair Employment and Housing Act.

The associational discrimination claim is viable, the justice explained, because the reasonable inference to be drawn from the timing of Rope’s firing “inference is that Auto-Chlor acted preemptively to avoid an expense stemming from Rope’s association with his physically disabled sister.”

The justice elaborated:

“The facts of this case are unusual.  Rope is alleging that Auto-Chlor fired him to avoid having to incur the expense of his leave under the DPA, which was intended for the very purpose of facilitating the donation of vital organs to individuals who are indisputably physically disabled.  Rope has thus met his burden to show the adverse employment action occurred under circumstances raising a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.”

The survival of the claim for associational discrimination, Johnson went on to say, necessarily means there is a viable claim for failure to maintain a discrimination-free workplace.

No Statutory Claim

Rope cannot, however, sue for violation of the DPA itself, because he was not an employee of the defendant when the act took effect, the justice said. He rejected the argument that because at least some organ donors—specifically those working for the state—have had a right to paid leave for more than 10 years, the Legislature must have intended that the protections of the DPA be applied retroactively in suits filed after its effective date.

There was no showing that the Legislature had any such intent, the jurist said.

Johnson also rejected Rope’s whistleblower claim under Labor Code Sec. 98.6, saying the plaintiff’s alleged internal complaints about the company’s delays in approving his leave did not qualify for protection under the statute, which deals with complaints to government agencies. Nor, the jurist said, did Rope plead a retaliation claim under FEHA, because his seeking of paid leave was not a protected activity under the act.

Attorneys on appeal were Douglas N. Silverstein and Lauren J. Morrison of  Kesluk & Silverstein for the plaintiff and Craig A. Horowitz and Wayne D. Clayton of Horowitz & Clayton for the defendant.

The case is Rope v. Auto-Chlor of Washington, Inc., 13 S.O.S. 5306.


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