In Moore v. Regents of the University of California, a former employee filed multiple causes of action under the California Fair Employment and Housing Act (FEHA) against her former employer, including disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation. The Court of Appeal overturned the lower court’s grant of summary judgment in favor of the employer for all claims, with the exception of the retaliation claim under the FEHA.

Plaintiff developed a heart condition in September 2010 and promptly alerted her supervisor. Despite telling her supervisor that her condition would not affect her ability to handle her normal workload, Plaintiff’s duties were significantly diminished. Plaintiff was later fired in February of the following year, two months after alerting her supervisor that she would require a few days off from work for a surgical procedure. The employer claimed that Plaintiff was fired out of a need to restructure Plaintiff’s department. However, the supervisor retained employment for the other director in Plaintiff’s department even though Plaintiff had seniority and the retained employee did not possess any “special skills, knowledge, or abilities” that Plaintiff lacked. The Court noted that in the absence of any further justification or any meaningful difference between similarly-situated employees, the company policy dictated that the senior employee be the one who keeps their job. The Court found that there was a triable issue of fact whether the employer’s non-discriminatory reasons for firing Plaintiff were pretext for disability discrimination due to the timing of the firing, the employer’s failure to follow its own policies, and evidence that the supervisor asked human resources how to handle Plaintiff “as a liability to the company.”

The Court also found that Plaintiff’s claims of failure to accommodate and failure to engage in the interactive process under the FEHA should have survived summary judgment because a reasonable fact finder could conclude that Plaintiff’s termination was pretextual by virtue of the evidence mentioned above. Furthermore, although the trial court determined that Plaintiff was not actually physically disabled, the Court stated that duties to accommodate and engage in an interactive process remain as long as an employer perceives a given plaintiff to be disabled.

Finally, the Court upheld the trial court’s grant of summary judgment to the employer on the retaliation claim under the FEHA because the law as it existed in 2011 did not consider a request for accommodation – here, Plaintiff’s statement that she would need a few days off from work in the future – to involve a “protected activity” as required to prevail on a claim for retaliation.

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