Metropolitan News-Enterprise


Friday, November 15, 2019


Page 1


Court of Appeal:

Good-Faith Blunder Is Actionable In Disability Discrimination Case


By a MetNews Staff Writer


The Court of Appeal for this district has held that an action for disability discrimination may be founded on a goof by a paper-pusher who thought that an employee who could no longer drive, owing to an eye condition, was unable to perform any work for the company and terminated his employment.

Justice Brian S. Currey of Div. Four wrote the opinion, which orders reinstatement of four of the six causes of action on which Los Angeles Superior Court Judge Stephanie Bowick granted summary adjudication in favor of the employer, Allergan.

As Currey framed the issue:

“A temporary corporate benefits staffer mistakenly thinks an employee has transitioned from short term disability (STD) to long term disability (LTD) and is unable to work with or without an accommodation. She fires him. The terminated employee tries to correct the misunderstandings, but for months the corporation ignores his entreaties. Does this constitute direct evidence of disability discrimination under the Fair Employment and Housing Act (FEHA) (Government Code § 12900 et seq.)?”

Fifth District Opinion

The jurist answered the question in the affirmative. He quoted the Fifth District Court of Appeal as saying in its 2016 decision in in Wallace v. County of Stanislaus:

“California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee. Instead, California’s statutory scheme protects employees from an employer’s erroneous or mistaken beliefs about the employee’s physical condition….In short, the Legislature decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a job’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.”

The temporary worker for Allergan, Anne Marie Perosino, declared the employment of John Glynn to have ended out of a mistaken belief he was unable to work when he was, in fact, fit for other duties, and it was the employer’s policy to reassign partially disabled workers, not fire them.

Reason for Publishing

Currey wrote:

“We publish to clarify that even a legitimate company policy, if mistakenly applied, may engender FEHA disability discrimination liability.”

After Glynn brought eight causes of action against Allergan, the company realized that a blunder had been made. It urged Glynn to return to work, with back pay, but he twice refused, saying he suspected bad faith on the company’s part.

Bowick on March 11 granted summary adjudication in Allergan’s favor on six causes of action, and summarily adjudicated the validity of the company’s affirmative defense that Glynn failed to mitigate damages by refusing to accept reemployment and that punitive damages were unavailable. The Court of Appeal on July 12 issued an alternative writ directing that the Superior Court vacate its summary adjudication order and deny it as to four specified causes of action, or show cause why a peremptory writ should not be issued.

Bowick wouldn’t budge. A peremptory writ was issued Wednesday ordering reinstatement of the causes of action for disability discrimination, retaliation, failure to prevent discrimination, and wrongful termination in violation of public policy.

The test for disability discrimination, set forth in Wallace, is “whether there is direct evidence that the motive for the employer’s conduct was related to the employee’s physical or mental condition”—and, Currey declared, “Glynn provided direct evidence of disability discrimination—Allergan terminated him because Perosino mistakenly believed he was totally disabled and unable to work.”

That, he said, “is enough to defeat a motion for summary adjudication.”

He noted that before being fired, Glynn sent four emails to the employer complaining that he was not being accommodated, and it waited nine months after discharging him to offer rectification.

“Based on these facts, a jury could infer the termination was retaliatory,” Currey wrote.

The causes of action for failure to prevent discrimination and wrongful termination, he said, “are derivative of Glynn’s FEHA disability discrimination and retaliation causes of action” and summary adjudication is therefore precluded for the same reasons.

The case is Glynn v. Allergan, Inc., 2019 S.O.S. 3554.


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