ADA & Disabilities, California HR

Does Employee’s Drug-Induced Mentally Altered State Nullify Voluntary Resignation?

A former employee sued her employer under the California Fair Employment and Housing Act (FEHA) for violations of public policy after her request to rescind her resignation—made while her mental state was altered—was declined.depression

Even if the former employee suffered a disability under the FEHA, the employer’s decision didn’t constitute an adverse employment action because it occurred after her employment had ended, and her resignation was free of employer coercion or misconduct. Furthermore, the former employee failed to place her employer on notice of her disability or request any accommodation before she resigned.

Background

“Emma” began working for Southern California Permanente Medical Group (SCPMG) in 2009. Before she started her job at SCPMG, she was diagnosed with an “inverted papilloma tumor,” and from 1995 to 2008, she underwent five surgeries for the condition. Throughout her employment at SCPMG, she suffered from chronic sinusitis.

In October 2013, Emma requested, and SCPMG granted, a leave of absence for a surgery she needed because of changes in her sinus tumor. None of the work status reports submitted to SCPMG during her medical leave of absence disclosed any information about her medical condition or any medications she was taking. On December 16, 2013, she returned to work without any work restrictions.

On December 23, at approximately 8:30 in the morning, Emma telephoned her supervisor, “Abby,” and said that she was resigning, effective immediately. Abby recalled that Emma stated that “God had told [her] to do something else.” Abby wasn’t aware that Emma was suffering from any type of altered mental state. She did ask Emma during the call to “slow down” but didn’t otherwise notice any “odd” behavior.

Later that day, Abby saw a Facebook post in which Emma stated that she had resigned in order to “do God’s work.” However, she didn’t think that it was out of the ordinary “because the reference to God was not inconsistent with Emma’s character.”

After the telephone conversation, Abby sent an e-mail message to Emma asking her to confirm the resignation in writing. Abby also notified her supervisor and SCPMG’s HR department of the resignation. SCPMG immediately processed Emma’s final paycheck and termination paperwork, which provided that she was “eligible for rehire.” Emma responded to Abby’s e-mail 3 days later, confirming her resignation effective December 23, 2013.

Request for Reinstatement and Notice of Purported Disability

On or about December 21, Emma’s behavior at home became erratic. For example, she “took off her clothes and walked around naked in front of others, repeatedly and uncharacteristically swore at family and friends, and took showers for no reason.” On December 24 (one day after her resignation), she was hospitalized. That same day, one of Emma’s coworkers spoke with Emma’s sister and learned of the hospitalization.

The coworker told her manager about Emma’s situation and also contacted SCPMG’s HR department. However, she was told that HR couldn’t discuss the situation because she wasn’t a relative of Emma. On December 26, the day that she confirmed her resignation via e-mail, Emma was transferred to a mental health facility. She was released later that same day.

On December 31, Emma informed SCPMG—for the first time—that she was suffering from an “adverse drug reaction” and, as a result, requested that her resignation be rescinded. In response, SCPMG asked for supporting documentation of her condition.

Emma submitted a physician’s note confirming that she had been hospitalized “due to a behavioral change that resulted from an adverse reaction from medication Phenergan with codeine.” Nevertheless, SCPMG concluded that there was nothing improper about accepting her resignation and there were no facts justifying a reversal of it. Emma didn’t reapply for her job with SCPMG.

Emma alleged that she suffered unlawful discrimination based on a “temporary disability” stemming from the side effects of medication she was taking to treat her chronic sinusitis and SCPMG failed to prevent unlawful discrimination, failed to accommodate her disability, failed to engage in the interactive process, and wrongfully terminated her in violation of public policy. The court of appeal held the lower court properly granted summary judgment (dismissal without a trial) in favor of SCPMG on all claims for two principal reasons.

First, SCPMG’s refusal to allow Emma to rescind her resignation wasn’t an adverse employment action. Second, she failed to raise a triable issue of fact about whether the SCPMG employees who accepted and promptly processed her resignation knew of her alleged temporary disability at the time they took those actions.

Disparate Treatment Discrimination

To establish a prima facie (minimally sufficient) case of disparate treatment discrimination, an employee must show that (1) she suffers from a disability, (2) she is otherwise qualified to do her job, (3) she suffered an adverse employment action, and (4) the employer harbored discriminatory intent.

The issue of whether an employer’s refusal to allow a former employee to rescind a resignation constitutes an adverse employment action isn’t clearly defined in the wording of the FEHA, and there are no California court decisions addressing the issue. Therefore, the court of appeal—in considering the issue for the first time—looked to federal court decisions in employment discrimination cases.

Based on federal case law, an employer’s refusal to rescind an employee’s resignation isn’t an adverse employment action, primarily because the employment relationship has already ended. The court of appeal reasoned that assuming, for the sake of argument, that Emma’s mental condition constituted a disability, her claim failed under the FEHA for similar reasons. In short, an adverse employment action must have an impact on an employee, not a former employee, to be actionable.

Additionally, there was no evidence that SCPMG coerced or otherwise improperly pressured Emma to resign or that SCPMG was contractually obligated to permit her to rescind the resignation. Emma was an “at-will” employee, and her resignation had been accepted by SCPMG’s processing of the termination paperwork. Because she couldn’t prevail on her discrimination claim, her derivative claim for failure to prevent discrimination also failed.

SCPMG Had Insufficient Knowledge of Her ‘Temporary’ Disability

Under the FEHA, an employer must provide a reasonable accommodation for an employee’s known physical or mental disability, and it is generally the employee’s burden to give the employer notice of the disability. It is a separate violation of the law for an employer to fail “to engage in a timely, good[-]faith . . . interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known medical condition.”

An employer will be deemed to have knowledge of an employee’s disability if information is provided directly by the employee or if the fact of a disability is the only reasonable interpretation of the clear, known facts. Although both the employer and the employee participate in the interactive process, the employee must specifically identify her disability and the resulting limitations and suggest reasonable accommodations unless that information is obvious to the employer. The employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.

Emma never identified her temporary disability or requested any accommodation before she resigned. Even though her supervisor noticed that her speech was rushed while she was giving her resignation, the reason for her resignation was to “do God’s work,” and she posted an “erratic” Facebook message about her resignation, those facts were insufficient to demonstrate that SCPMG knew or should have known that she was suffering a temporary disability caused by an adverse drug reaction.

Facts learned after an employer has decided to take an adverse employment action are not probative of whether the decision maker was aware of the disability when he made the decision. Accordingly, the fact that Emma’s friend and coworker notified SCPMG’s HR department that Emma had been hospitalized the day after her resignation or that Emma notified SCPMG of her purported disability when she requested reinstatement wasn’t compelling.

Finally, under California law, if an employer didn’t violate the FEHA, the employee’s claim for wrongful termination in violation of public policy necessarily fails. Because Emma didn’t establish a violation of the FEHA, her claim for wrongful termination in violation of public policy failed. Featherstone v. Southern California Permanente Medical Group (California Court of Appeal, 2nd Appellate District, 4/19/17.)

Bottom Line

Although the situation isn’t commonplace, employers can defend FEHA disability discrimination claims involving a refusal to rescind a voluntary resignation based on the argument that postemployment decisions aren’t adverse employment actions.

This case also highlights the importance of promptly responding to an employee’s resignation by obtaining written confirmation of the resignation, timely processing the paperwork, and accurately recording your communications with the employee. With regard to having notice of an employee’s disability, you need not be a mind reader, but actual notice will continue to be a question of fact that must be reviewed in each case.

Anjuli Cargain, contributor to California Employment Law Letter, can be reached at Sedgwick LLP in San Francisco, anjuli.cargain@sedgwicklaw.com.