United States: Employer Policy Failure Precludes Summary Judgment On Discrimination Claim

Seyfarth Synopsis: California Court of Appeal reverses a summary judgment for an employer that failed to follow its own policy regarding layoffs.

Moore v. Regents of the University of California serves as a reminder to employers of the need to handle personnel decisions affecting employees with disabilities, or perceived disabilities, with great care.

The Facts

Deborah Moore began working for UC San Diego's Marketing and Communications Department in 2008. In early September 2010, Moore was diagnosed with a heart condition and began wearing an external "LifeVest," which included a heart monitor and a defibrillator. She wore the "LifeVest" for two to three weeks.

Moore explained to her boss, Executive Director Kimberly Kennedy, what the device was for, and said she "would be able to do [her] job, no problem." Kennedy responded, "The first thing we need to do is lighten your load to get rid of some of the stress." Kennedy then consulted human resources about how to  handle an employee "with adverse health issues." Kennedy later told Moore that she had "been in touch with HR" to ask "how to handle [Moore] as a liability to the department."

Moore believed that her relationship with Kennedy changed once Kennedy knew of the heart condition. Kennedy began handling some of Moore's duties, and reassigned other duties to different workers. In mid-November 2010, Kennedy demoted Moore, through a Department restructuring. Her salary did not change, but her benefits were reduced.

In December 2010, Moore told Kennedy that she would likely receive a pacemaker in early 2011 and would need a "few days off work." Moore later told Kennedy she "would need two or three days off in April 2011" for the surgery. Moore received FMLA paperwork, but she never turned it in, because she planned to use accrued vacation or sick leave and her doctor told her "You're not going to need to take this."

On February 2, 2011, Kennedy emailed HR to say she wanted to eliminate Moore's position as of February 15, 2011. Kennedy explained that the job functions that Moore was performing had decreased to such a point that Kennedy could assume them herself. The HR representative, noting that Moore was one of two Department Directors, asked Kennedy why Moore, in light of her greater seniority, should not be retained in light of UCSD's seniority policy, which provided that employees with the same classification and salary grade would be laid off in inverse order of seniority, unless the junior employee had "special skills, knowledge or abilities" that the more-senior employee lacked. Kennedy simply responded that there was no need for two Directors, without addressing the seniority policy.

UCSD eliminated Moore's position in February 2011 and terminated Moore's employment. Kennedy did not ask Moore if she would accept a pay reduction, and did not consider Moore for a freelance position. And although the Department hired eight new workers around this time, Moore was not offered any of those positions.

Moore sued UCSD under the Fair Employment and Housing Act for disability discrimination, failure to engage in the interactive process, and retaliation, as well as for interference with the California Family Rights Act and retaliation in violation of the CFRA. The trial court granted summary judgment for UCSD, finding that Moore had not produced evidence that UCSD's stated reasons for her termination were pretexts for unlawful discrimination.

The Appellate Court Decision

The Court of Appeal reversed summary judgment on all but one claim—the FEHA retaliation claim. At the time of the termination, a mere "reasonable request for accommodation" did not qualify as protected activity under the FEHA, though in 2015 the statute was amended to so provide. The Court of Appeal held that this amendment was not retroactive.

The Court of Appeal found that Moore had raised a triable issue, however, as to whether UCSD's stated reasons for terminating her employment were pretexts for retaliation under the CFRA. First, the Court of Appeal considered the timing of the adverse employment actions in relation to Moore's "rapid ascension in the department," having been promoted twice, but then having job responsibilities eliminated, being demoted, and having her position eliminated shortly after told Kennedy about her medical condition. The Court of Appeal reasoned that these facts could lead a reasonable trier of fact to find that the motive for Moore's termination was unlawful .

Next, the Court of Appeal discussed UCSD's seniority policy and noted that Kennedy explained only why Moore's position was being eliminated, but not why Moore, as the most senior Director, was the employee selected for termination. UCSD never offered any evidence to show that the more junior employee, who was being retained, possessed "special skills, knowledge or abilities" that Moore lacked. The Court of Appeal also pointed to evidence that UCSD did not follow its own policy of offering Moore "preferential opportunities for reassignment or transfer prior to indefinite layoff."

Finally, the Court of Appeal relied on "evidence of other statements made by Kennedy from which a fact finder could infer that Kennedy was concerned that Moore's health was going to be a problem at work and that she may have had discriminatory reason for terminating Moore's employment."

The Court of Appeal next considered Moore's FEHA claims for failure to accommodate and failure to engage in the interactive process. The Court of Appeal reasoned that the employer had a duty to engage in the interactive process and to seek to accommodate once it perceived Moore as disabled. Further, the fact that she requested leave from work due to her medical condition "can be considered a request for accommodation under FEHA," even though Moore told Kennedy that she otherwise would be able to perform her job duties as usual.

As to Moore's CFRA claims, the Court of Appeal noted that the relevant question is not whether a plaintiff expressly requested CFRA leave, but, rather, whether she requested any leave, and whether such leave was for a qualifying CFRA purpose. Thus, when an employee requests leave, "an employer bears the burden, under CFRA, to inquire further if [the] employee presents the employer with a CFRA-qualifying reason for requesting leave."'

What Moore v. Regents UC Means for Employers

Moore exemplifies the pitfalls facing an employer in handling employees who are disabled or perceived to be disabled. Even where an employee expressly denies being disabled or needing any accommodation, if the employee could be perceived as being disabled, then the employer should inform the employee of leave rights and engage in an interactive process to seek to accommodate the employee. The duty to accommodate includes circumstances where the employee merely indicates a desire to take a few days off for medical reasons, but asserts that she can otherwise perform her duties as usual.

Further, it is critical that managers receive training in how to handle employees who may require accommodation. Having lawful policies and procedures in place is ineffective if they are not followed. This observation applies not only to policies that directly address employee rights under the FEHA, CFRA, and other statutes, but also policies—such as a seniority policy—that, if not followed, could give rise to inferences of discrimination.

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