Ninth Circuit Employment Law HappeningsFirst Quarter 2013 – Articles California Update
EEOC Gets a Taste of Its Own Medicine
The plaintiff in Mary Bullock v. Jacqueline Berrien, 688 F.3d 613 (9th Cir. 2012) worked with the Equal Employment Opportunity Commission (EEOC) for eight years as an Administrative Law Judge (ALJ), while suffering from multiple sclerosis and systemic lupus. She claimed that she requested a reasonable accommodation for her multiple sclerosis, but that her requests were ignored and that she was thereafter subjected to retaliation. The plaintiff then filed an administrative complaint alleging disability discrimination, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. §701, et. seq. An ALJ denied her request for relief, in part. The plaintiff initially pursued an administrative appeal of the ALJ’S decision, but later withdrew this appeal in favor of filing a civil complaint on the same facts in federal district court. The EEOC challenged her civil complaint on jurisdictional grounds, claiming that the plaintiff failed to exhaust her administrative remedies because she had not waited 180 days after filing her administrative appeal before proceeding to court.
The Ninth Circuit disagreed with the EEOC. It held that the plaintiff was within her rights to file a civil complaint because an ALJ had already ruled upon her complaint and the administrative appeal that she withdrew was merely optional. The fact that the EEOC failed to comprehend the nuances of its own administrative appeal procedure doesn’t bode well for employers trying to make sense of them on their own.
Disability Discrimination Action Against Montblanc “Runs Dry”
The plaintiff in Cynthia Lawler v. Montblanc North America, LLC and Jan-Patrick Schmitz, 704 F.3d 1235 (9th Cir. 2013) worked as manager at one of Montblanc’s boutique retail outlets for approximately eight years. In mid-2009, the plaintiff’s physician diagnosed her as having psoriatic arthritis and recommended that she be permitted to work a reduced schedule of 20 hours “for medical reasons.” In its response, the defendant employer reminded her that as manager, she was required to work 40 hours per week. It requested medical documentation to support the request for a reduced schedule. Several weeks later, the plaintiff injured her foot in a fall as an “indirect consequence” of her arthritic condition. She requested temporary disability leave. A member of the employer’s upper-management questioned the plaintiff about the legitimacy of her injuries and leave request. After several confrontations with management, the plaintiff produced a letter from her physician recommending that she take an extended leave of absence to avoid “further flare-ups” of her psoriatic arthritis. While on leave, the plaintiff was terminated because her position needed to be filled immediately, notwithstanding her physician’s recommendation that she return to work after an additional three-month period. The plaintiff filed suit against the employer alleging disability discrimination under California’s Fair Employment and Housing Act, retaliation, harassment and intentional infliction of emotional distress.
The Ninth Circuit upheld the district court’s order granting summary judgment in favor of the employer. It concluded that the plaintiff’s FEHA claim was defeated by her inability to perform the essential functions of her position as demonstrated by her very own statements that her “disability prevents her from performing any work…” Further, the retaliation claim failed because there was no evidence that the reasons for her termination were pretextual. The close temporal proximity between her complaint and her termination could not raise issues of fact for a jury to consider. The Ninth Circuit concluded that the actions of the plaintiff’s supervisors were reasonably related to management of a workplace and business operations and, therefore, did not constitute harassment under the FEHA. Lastly, the alleged mistreatment by management was not sufficiently severe to qualify as actionable “emotional distress.” In sum, the employer’s actions, while arguably gruff, were nondiscriminatory in nature and were plausibly aimed at improving the management of their workplace, which is permissible under FEHA.