Federal And State Courts Of Appeal Offer Further Guidance On Discriminatory Versus Legitimate Non-Discriminatory Business Decisions And The Weight Of The “Knowledge” Factor

By: Gregory K. Sabo and Chelsea L. Zwart
May 25, 2017

Mendoza v. The Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148

In Mendoza v. The Roman Catholic Archbishop of Los Angeles (9th Cir. 2016) 824 F.3d 1148, the Ninth Circuit Court of Appeals held that an employer is not required to offer an employee the same position upon return from sick leave if the position was eliminated during the employee’s leave period for a legitimate non-discriminatory business reason.

In Mendoza, prior to taking sick leave for ten months, the plaintiff worked full-time as a bookkeeper for a small Catholic church.  During her absence, the pastor of the church took over the bookkeeping duties himself and determined that the duties could be performed adequately by a part-time bookkeeper.  Accordingly, when the plaintiff returned to work, the pastor offered her the same bookkeeping position she had held before her leave of absence, but on a part-time basis.  The plaintiff refused, demanding a full-time position.  She then sued her former employer, asserting claims under the Americans with Disabilities Act (“ADA”) for discrimination, disparate treatment, and failure to accommodate for failing to return her to a full-time position following her medical leave.

The Court of Appeal affirmed the district court’s granting of summary judgment for the employer, finding that the plaintiff failed to raise a triable dispute as to whether the pastor’s legitimate, nondiscriminatory reason for not returning the plaintiff to full-time work was pretextual.  Because the plaintiff failed to establish that a full-time position was available, she was unable to meet her burden to show the existence of a reasonable accommodation that would have enabled her to perform the essential functions of an available job.

Importantly, the Court’s opinion compared the burden of proof placed on a plaintiff in an ADA case in contrast to a Title VII Civil Rights Act claim, stating that while knowledge is not a requirement of a Title VII claim under EEOC v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028, the ADA defines discrimination “to include an employer’s failure to make ‘reasonable accommodation’ to the known physical or mental limitations.” (42 U.S.C. §12112(b)(5)(A) (original emphasis)).  The Court stressed that “ADA cases, which allow a plaintiff who alleges disparate treatment to prove her case by demonstrating either that ‘a discriminatory animus is the sole reason for the challenged action’ or that ‘discrimination is one of two or more reasons for the challenged decision, at least one of which may be legitimate,’” remain good law.

Castro-Ramirez v. Dependable Highway Express (2016) 2 Cal.App.5th 1028

Also instructive regarding discrimination in the workplace is Castro-Ramirez v. Dependable Highway Express (2016) 2 Cal.App.5th 1028.  In Castro Ramirez, the California Court of Appeal held that the California Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against an employee based on the employee’s association with another person who has a disability.

In Castro-Ramirez, the plaintiff had requested work schedule accommodations at the time of his hiring in order to be home in time to administer his son’s dialysis on a daily basis.  These accommodations were granted until a new supervisor was assigned to oversee the plaintiff, who demanded that the plaintiff work a shift that did not allow him to go home for his son’s dialysis.  When the plaintiff refused, the new supervisor told the plaintiff that he “had quit by choosing not to take the assigned shift,” and terminated the plaintiff’s employment.  The plaintiff then sued his former employer for disability discrimination, failure to prevent discrimination, and retaliation under the FEHA.

The trial court granted the employer’s motion for summary judgment, rejecting the plaintiff’s theory that the employer had violated the FEHA by terminating him for requesting an accommodation to care for a relative with a disability.  The Court of Appeal reversed the trial court’s ruling, finding that the FEHA provides a cause of action for associational disability discrimination by forbidding discrimination based on a person’s “disability” arising out of his or her association with another who has a disability.  In light of this adaptation of the meaning of “disability,” the Court of Appeal held that the plaintiff was required to, and did, establish a prima facie case of disability discrimination under the FEHA by showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability.  The Court of Appeal explained that the burden then shifted to the employer to offer a legitimate nondiscriminatory reason for the adverse employment action, after which the plaintiff would have the opportunity to show that the employer’s proffered reason was pretextual or to offer further evidence of a discriminatory motive.  As the Court of Appeal found that the plaintiff’s evidence gave rise to reasonable inferences of a discriminatory motive and pretext, the employer’s motion for summary judgment failed as a matter of law.

Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109

The Fourth District Court of Appeal addressed a separate but related issue from the two cases discussed above, in Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109.  In Wallace, the California Court of Appeal held that California law does not require that an employee with an actual or perceived disability must prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee.  The Court of Appeal also held that placing the employee on leave of absence was not a lawful accommodation of his physical disability when there were positions available that the employee could perform.

In Wallace, the plaintiff sued his former employer for disability discrimination under the FEHA after his employer removed him from his job as a bailiff and placed him on an unpaid leave of absence based on the incorrect assessment that the plaintiff’s recurrent knee pain prevented him from safely performing his duties as a bailiff even with a reasonable accommodation.

The Court of Appeal held that the trial court incorrectly required the plaintiff to prove ill will by his employer, specifically that his employer regarded or treated him “as having a disability in order to discriminate.”  Rather, as the Court of Appeal pointed out, the proper standard regarding employer intent or motivation in California “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.”  Thus, even if the employer’s mistake was reasonable and made in good faith, 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.  Accordingly, the plaintiff could prove the requisite discriminatory intent simply by showing his actual or perceived disability was a “substantial motivating factor/reason” for the County’s decision to place him on a leave of absence.

The Court of Appeal also concluded that disability discrimination claims under the FEHA are fundamentally different from the discrimination claims based on other factors such as race, religion, age and sex.  As such, the burden shifting framework of other discrimination claims (the McDonnell Douglas test), which requires the plaintiff to prove intentional discrimination by offering evidence of the employer’s discriminatory motive once the employer has produced a legitimate reason for the adverse employment action, does not apply in disability discrimination cases where the plaintiff presents direct evidence of the role of the employee’s actual or perceived disability in the decision to implement an adverse employment action.

Additionally, the Court of Appeal discredited the employer’s contention that placing the plaintiff on leave was the most reasonable accommodation, stating that “[w]hen an employee can work with a reasonable accommodation other than a leave of absence, an employer may not require that the employee take a leave of absence.”  Given that the plaintiff’s doctor had stated he could perform the functions of a bailiff and the plaintiff had suggested working as a detective or school resource officer rather than a bailiff, the jury found that the plaintiff could perform his essential job functions, with or without accommodation.  Thus, the Court of Appeal held that the employer’s decision to place the plaintiff on a leave of absence cannot be a lawful accommodation of a physical disability.

In sum, employment discrimination actions present unique challenges to employers.  As is readily apparent from the cases above, California continues to be highly protective of employees, broadening the scope of potential sources of discrimination and lowering the burden of proof in some instances.  Accordingly, employers must stay abreast of ever changing discrimination laws and be cautious when taking action against employees with known or suspected disabilities.

 

Chelsea L. Zwart
Ms. Zwart is an Associate at Chapman Glucksman Dean Roeb & Barger.

About the author

Gregory K. Sabo

Mr. Sabo is a Partner at Chapman Glucksman Dean Roeb & Barger.

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