An employee was placed on paid leave because of his medical symptoms. When he was subsequently fired, he sued for disability discrimination. The employer prevailed at the trial court level but lost before the appellate court. The crux of the case was whether the employer “regarded” the employee as disabled even though he didn’t have an actual disability. 
Employee placed on leave because of lead toxicity
In October 2008, American Cable Services, LLC (ACS), hired Ronnie Owens as a warehouse cable stripper. ACS processes recyclable copper and lead from telecommunications cable at its processing facility in Los Angeles. Dr. Claudio Hoegel was retained by ACS to monitor its employees for exposure to lead and other toxic materials.
When Owens first began working at ACS, he had a lead level of three micrograms per deciliter of blood. He alleged that he began experiencing headaches, fatigue, diarrhea, nausea, lack of sex drive, vomiting, stomachaches, physical weakness, and flu-like symptoms, and he complained to ACS and Hoegel.
A blood test administered on October 29, 2008, registered that Owens had a blood-lead level of 22, and on November 6, his level was 21. Hoegel’s report listed “lead toxicity” as the diagnosis and contained the instruction “remove from lead exposure.” Based on that report, ACS sent Owens home on paid leave for several weeks.
On November 26, 2008, Hoegel cleared Owens to return to work. He alleged that after returning to work, he began experiencing the same symptoms and that he asked to be assigned tasks not involving lead exposure. ACS denied his request. On December 19, Owens registered a blood-lead level of 14.
On January 20, 2009, Owens notified his supervisor that he was feeling ill because of lead exposure and requested a medical examination. Hoegel issued another report listing “lead toxicity” as the diagnosis and recommended that Owens be “remove[d] from lead exposure.” Hoegel ordered another blood test, and the results, received January 22, showed a blood-lead level of 21. On January 23, Hoegel cleared Owens to return to work. On February 2, Owens’ employment was terminated.
Employee sues for disability discrimination
In July 2010, Owens filed a complaint against ACS and its managing member, R. Mitchel, Inc. (R. Mitchel), a business that recycles plastic and metal. ACS and R. Mitchel share loading docks and have the same mailing address as well as the same president and CEO. Employees performed duties both for ACS and R. Mitchel, and personnel files for both companies were stored in R. Mitchel’s offices.
Owens’ complaint alleged the following seven claims:
- Physical disability discrimination;
- Physical disability harassment;
- Failure to engage in the interactive process of accommodation;
- Failure to accommodate a disability;
- Wrongful termination in violation of public policy;
- Intentional infliction of emotional distress; and
- Negligent infliction of emotional distress.
In August 2012, ACS and R. Mitchel asked the court to dismiss the case because (1) Owens wasn’t employed by R. Mitchel and (2) he didn’t have a disability when his employment was terminated. They submitted evidence tending to show that Owens never had lead poisoning. An expert witness, Dr. Paul Joseph Papanek, declared that the California Division of Occupational Safety and Health permits employees to continue working as long as their blood-lead levels are below 50 unless they are removed from exposure by a treating physician for specific reasons. Hoegel declared that the medically acceptable range for an individual blood- lead level is zero to 40, and Owens was always within the acceptable range.The trial court found that (1) Owens was employed solely by ACS and thus R. Mitchel had no potential liability, (2) Owens’ blood-lead levels were within the medically accepted limit, and (3) Owens had no disability and wasn’t treated by ACS as if he had a disability. The trial court dismissed all the claims, and Owens appealed.
Owens wasn’t disabled but was ‘regarded as’ disabled
The appellate court found that Owens failed to prove that he had an actual physical disability under California’s Fair Employment and Housing Act (FEHA). He didn’t establish that he suffered from lead poisoning or that his symptoms otherwise made a major life activity―such as working―difficult. Although ACS granted Owens leave based on his medical symptoms, the evidence didn’t establish that his symptoms rendered work or any other major life activity difficult.That was not, however, the end of the appellate court’s analysis.
Under the FEHA, even if an employee doesn’t have an actual disability, he is still protected if the employer regards or treats him “as having, or having had, any physical condition that makes achievement of a major life activity difficult” or “that has no present disabling effect but may become a physical disability.”Hoegel wrote two separate reports listing “lead toxicity” as the diagnosis and instructing that Owens be removed from lead exposure. As a result, he was given paid leave by ACS. Accordingly, the appellate court found that there was an issue of fact to be determined at trial about whether ACS regarded Owens as having a physical condition (lead toxicity) that made achievement of a major life activity (working) difficult.
ACS argued that this conclusion was incorrect because Hoegel declared that when he “recommended that [Owens] be taken out of the work place, it was not due to an excessive amount of lead in [his] body. I did it as a precautionary move.” The appellate court wasn’t persuaded.
Even if ACS temporarily removed Owens from his duties only as a precautionary measure, the FEHA covers health impairments that have no present disabling effect but may become a physical disability. Accordingly, the appellate court found that a “reasonable inference of the evidence presented is that ACS granted Owens time off from work because it believed he had a health impairment that, if ignored, could become a physical disability.” Owens was entitled to proceed to trial on whether his employer regarded him as disabled.
Both ACS and R. Mitchel have potential liability
Although managers of limited liability companies aren’t held liable for the wrongful conduct of the companies solely because of the managers’ status, they may nonetheless be held accountable for their personal participation in unlawful conduct. In this case, Owens raised triable issues of fact that R. Mitchel participated in the discrimination against him. Owens v. American Cable Services (California Court of Appeal, 2nd Appellate District, Unpublished, 3/11/14).
Bottom line
This case serves as an important reminder that even if an employee isn’t actually disabled, he will be covered by the FEHA if you treat or regard him as being disabled. You should be mindful of how you interact with your employees and be careful not to assume they have or treat them as having a disability before that has been established.
Cathleen S. Yonahara is an attorney with Freeland Cooper & Foreman LLP in San Fransisco. She may be contacted at yonahara@freelandlaw.com.