Disability Discrimination Plaintiff Not Required to Prove Ill Will

Sheriff’s Deputy Dennis Wallace brought a disability discrimination case against the County of Stanislaus (County) under FEHA (Government Code section 12940) after the County removed him from his job as bailiff and placed him on an unpaid leave of absence.  Wallace wanted to continue doing his job, but the County believed Wallace could not safely perform the job. At trial, Wallace was able to show he could safely perform the job with accommodations. The County argued that even if it was wrong, the mistake was reasonable and Wallace could not prove animus or ill will.

Court Incorrectly Held Disability Plaintiff Must Prove Animus or Ill Will

The trial court believed the employee had to prove “animus or ill will” in order to prevail.  The trial court modified the jury instruction (CACI No. 2540) to include a requirement that Wallace prove County regarded or treated him “as having a disability in order to discriminate.”

On appeal, the court concluded the jury instruction and special verdict form contained error.  The proper standard regarding employer intent or motivation was decided by the Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris).

Animus or Ill Will Not Required.

Disability Plaintiff Protected from erroneous or mistaken believes About Employee’s Ability to Perform the Job.

Under Harris, Wallace could prove the requisite discriminatory intent by showing his actual or perceived disability was a “substantial motivating factor/reason” for County’s decision to place him on a leave of absence. California law 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, employees are protected from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.  (§ 12926.1, subd. (d).)

In short, the Legislature decided that 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. Even if the employer’s mistake was reasonable and made in good faith, the employee is not required to prove the employer’s decision was motivated by animus or ill will.

The court remand Wallace’s disability discrimination claim for a retrial limited to determining the amount of damages resulting from County’s decision to place Wallace on an unpaid leave of absence.  The court believed a limited retrial was appropriate because the jury found that (1) County regarded or treated Wallace as if he were disabled, (2) Wallace was able to perform the essential job functions of a deputy sheriff with or without reasonable accommodation, and (3) County failed to prove Wallace’s disability would increase the danger to himself or others while he performed those job functions.

The court held that as a matter of law, the reason the County placed Wallace on a leave of absence was its mistaken belief that he could not safely perform the essential job functions of a deputy sheriff.  Therefore, the substantial-motivating-reason element was proven.  The court also found, as a matter of law, that the County’s decision to place Wallace on leave was a substantial factor in causing Wallace to suffer economic losses.  Based on those findings, the court determined the retrial could be limited to the amount of Wallace’s damages.

The lesson for employers is to not presume an employee is unable to safely perform the essential functions of the job just because the employee has a disability.  Placing an employee on a leave of absence against the employee’s will when the employee can perform the essential functions of the job with a different accommodation could lead to significant liability.

Employer Cannot Fire Employees for Reporting Theft at Work

Rosa Lee Cardenas worked for M. Fanaian, D.D.S., Inc. as a dental hygienist.  When Ms. Cardenas could not locate her wedding ring—she typically took it off while performing her job duties—she called the local police and reported that a coworker may have stolen her ring.  After the police came to the workplace on two separate occasions, the employer pulled Ms. Cardenas aside and told her that “the situation was causing great tension and discomfort among the staff, and that he was going to have to let her go.” Cardenas filed a lawsuit alleging she was fired for reporting theft of her wedding ring. A jury agreed and awarded her $117,768 in damages. The lesson: Don’t fire employees for reporting theft at work.

Don’t Fire Employees for Reporting Theft

Fanaian appealed claiming the real reason Cardenas filed a police report was to serve her private interest, not a public purpose, and a termination in violation of public policy does not exist when the employee reports a purely personal issue (e.g., not something related to the employment).  Cardenas claimed that Labor Code section 1102.5 stands alone, and does not require a separate showing that the employee’s subjective motivation and/or the particular crime he or she reported concerned a fundamental public policy.  Cardenas pointed out that section 1102.5 embodies a sufficient public policy for purposes of permitting an award of damages.

The court of appeals agreed, and affirmed the judgment. “[T]he plain and unambiguous language of section 1102.5(b) creates a cause of action for damages against an employer who retaliates against an employee for reporting to law enforcement a theft of her property at the workplace.”

Anytime an employee reports a suspected crime to the police, he or she is possibly engaging in protected activity.  Employers should be mindful that Labor Code section 1102.5 is very broad, and terminating an employee because the employee complained or made know his or her intention to complain to a government agency is unlawful.  Fanaian learned the hard way not to fire employees for reporting theft of personal items at work.