Metropolitan News-Enterprise


Wednesday, June 22, 2016


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C.A. Revives Disability Bias Suit by UC San Diego Employee




The Fourth District Court of Appeal has reinstated a disability discrimination suit by a former UC San Diego marketing director who claims she was terminated after she informed her superiors she needed heart surgery.

Div. One ruled June 2 that a San Diego Superior Court judge erred in granting summary judgment, because Deborah Moore raised triable issues of fact with respect to four of her five causes of action. In particular, the panel held that the university can be held liable for failure to accommodate a disability or to engage in an interactive process if it perceived Moore as disabled, even if her condition did not constitute a disability as defined by the Fair Employment and Housing Act.

Justice Cynthia Aaron’s opinion was certified Monday for publication.

Moore sued the university in January 2013, nearly two years after she was laid off for what the school called “lack of work” and “budget reasons.” The real reason, she alleged, was that she suffered from idiopathic cardiomyopathy, was going to need surgery, and was, as a result, considered—in the words of the executive director of the Marketing and Communications Department, to whom she reported—“a liability to the department.”

Reduced Responsibilities

The executive director, Kimberly Kennedy, had been gradually reducing Moore’s responsibilities, the plaintiff claimed, transferring them to herself or to others. In November 2010, Moore was demoted from marketing director to “director of marketing and brand management,” at the same salary but with fewer benefits.

In February 2011, the university adopted Kennedy’s proposal to eliminate Moore’s position, effectively terminating her employment, and transferred Moore’s remaining responsibilities to Kennedy.

In granting summary judgment, Judge Katherine A. Bacal ruled that although Moore had a prima facie case of disability discrimination, the university had rebutted that case as a matter of law by showing that it had a legitimate, nondiscriminatory reason for her termination. The judge further ruled that Moore “did not have a disability that required accommodation,” and that she did not engage in protected activity that would support a claim of retaliation under FEHA or the California Family Rights Act.

Aaron, however, said that all of the claims, except the FEHA retaliation claim, were viable.

A trier of fact, the justice said, must decide whether Moore really was let go for administrative/budgetary reasons or whether that was a pretext for disability discrimination.

“According to Kennedy, the duties that Moore had in her position were duplicative of duties that Kennedy either was handling or planned to handle herself,” Aaron wrote. “However, the timing of events leading up to Moore’s termination could suggest that something other than simple restructuring was at play.”

Timing Questioned

The jurist noted that the action came about a year after Moore was promoted to her position, but only two months after she told Kennedy she was facing surgery, and that Moore testified that Kennedy’s attitude toward her became hostile after Moore gave her that news. That Moore was not offered an opportunity to remain with the university in some other capacity, and that a less senior employee performing duties similar to Moore’s was kept on, are also relevant to the issue of pretext, the justice said.

Given the inference that Moore’s termination was pretextual, that UC regarded her as disabled, that she sought an accommodation of her perceived disability in the form of a few days off to have surgery, and that she was terminated without an offer of leave time for that purpose or further discussion as to how her condition might be accommodated, her claims for failure to accommodate and failure to engage in an interactive process survived summary judgment as well, the justice said.

Aaron did agree with the university and the trial judge that Moore lacked a viable FEHA retaliation claim under the state of the law at the time. While the statute has since been amended, the case law that governed in 2011 held that a request for accommodation did not rise to the level of protected activity, the jurist explained.

A different result obtains, however, with respect to Moore’s CFRA interference and CFRA retaliation claims. An employee who asks for medical leave, and who otherwise qualifies under CFRA, must be granted reasonable leave, even if she does not specifically invoke the statute, the jurist explained.

At minimum, Moore raised a triable issue as to whether her termination was a pretext designed to prevent her from taking CFRA leave, the jurist said.

The case is Moore v. Regents of the University of California, 16 S.O.S. 2927.


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