By Beth Kahn and Sigalit Shoghi, Morris Polich & Purdy LLP
The California Court of Appeal has sent employers a message to be vigilant in following their policies and attentive to employees who request time off for medical conditions. A recent ruling against the University of California at San Diego (UCSD) made clear that an employer bears the burden to inquire further when an employee makes an ambiguous request for time off for a medical condition. The case also shows how broad the duty to accommodate can be and how dangerous it is to make any derogatory comments about disabilities.
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Employee with a vested liability
Deborah Moore began working in UCSD’s Marketing and Communications Department in 2008. In February 2010, she became the director of marketing. In June 2010, Kimberly Kennedy was hired as the new executive director and became Moore’s supervisor. A few months later, Moore was diagnosed with a heart condition and began wearing a monitor called a “LifeVest.”
Moore met with Kennedy and explained that she could perform her work despite having to wear the LifeVest. After their meeting, Kennedy asked HR what to do about an employee “with adverse health issues.” A few weeks later, when Moore informed Kennedy that she no longer needed to wear the LifeVest, Kennedy told her that she had been in touch with HR about how to handle her as a “liability to the department.”
According to Moore, her relationship with Kennedy changed after her supervisor became aware of her heart condition. For example, Kennedy criticized her work, took away some of her responsibilities, and assigned her work to freelancers. In November 2010, Kennedy demoted her through a restructuring.
A month later, Moore informed Kennedy that she would likely need to have a pacemaker surgically implanted in early 2011 and would therefore need a few days off work. They didn’t discuss the request further. In February 2011, Kennedy took steps to have Moore’s position eliminated. UCSD’s policy requires that layoffs be effected in reverse order of seniority, but an employee may be retained irrespective of seniority if he possesses special skills, knowledge, or abilities. Although Moore was senior to another coworker who performed the same duties, she was selected for layoff.
Consistent with UCSD policy, HR asked Kennedy to explain why Moore should be laid off instead of her coworker despite her seniority. Kennedy responded that there was no need for two director positions, but she didn’t explain the special skills Moore’s coworker possessed that Moore did not.
UCSD also has a policy requiring that laid-off employees be given preferential opportunities for reassignment, transfer, and a right of “recall” to a job in the same classification that opens up after her layoff. Although the department hired eight more employees, Moore was never considered for any of those positions even though she had the required background.
Moore filed a complaint alleging claims for (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in the interactive process, (4) retaliation in violation of the California Fair Employment and Housing Act (FEHA), (5) interference with the California Family Rights Act (CFRA), and (6) retaliation in violation of the CFRA. The trial court dismissed her case without a trial. Moore appealed, and the California Court of Appeal agreed with her, sending the case back to the trial court.