Moore v. Regents of University of California

Facts

The statutory framework. The claims arose under the California Fair Employment and Housing Act and the Moore-Brown-Roberti Family Rights Act. FEHA “makes it an unlawful employment practice to discharge a person from employment or discriminate against the person in the terms, conditions, or privileges of employment because of physical or mental disability or medical condition.” (Moore, supra, 248 Cal.App.4th at p. 231; § 12940, subd. (a).) FEHA separately imposes on the employer “the obligation to make reasonable accommodation” for a known disability (§ 12940, subd. (m)) and makes it unlawful “to fail to engage in a timely, good faith, interactive process … to determine effective reasonable accommodations.” (Id. at p. 232; § 12940, subd. (n).) Critically for this case, a person is “physically disabled” under FEHA not only with an actual physiological condition but also where “‘regarded or treated by the employer … as having … any physical condition that [currently] makes [or, in the future may make] achievement of a major life activity difficult.’” (Id. at p. 237, fn. 4, quoting § 12926, subd. (m)(4).) CFRA, the state corollary to the federal Family and Medical Leave Act, “is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.” (Id. at p. 233.)

A rapid ascent. Deborah Moore began at UC San Diego’s marketing and communications department in 2008 — first as a temporary worker, promoted within a year to creative director, and by February 2010 to director of marketing, overseeing half of the department; she briefly shared interim executive-director duties after the prior executive director resigned. (Moore, supra, 248 Cal.App.4th at pp. 226, 238.) In June 2010 Kimberly Kennedy was hired as the new executive director and “sought to restructure the Department.” (Id. at p. 226.)

The diagnosis and the “lighten your load” response. In early September 2010, Moore was diagnosed with idiopathic cardiomyopathy and prescribed a “LifeVest” — a wearable monitor and external defibrillator she had to wear for two to three weeks. (Moore, supra, 248 Cal.App.4th at p. 226.) On the first day she wore it to work, she told Kennedy “‘what [her] condition was,’” that “‘there was nothing to worry about,’” and that she “‘would be able to do [her] job, no problem.’” (Ibid.) Kennedy’s response: “‘The first thing we need to do is lighten your load to get rid of some of the stress.’” (Id. at pp. 226–227.)

The “liability” remark. After speaking with Moore, Kennedy contacted human resources for information on what to do about an employee “‘with adverse health issues.’” (Moore, supra, 248 Cal.App.4th at p. 227.) When Moore reported that she no longer needed the LifeVest because it had been “overprescribed,” Kennedy told her she had “‘been in touch with HR’” to ask “‘how to handle [Moore] as a liability to the department.’” (Ibid.) Moore testified that her relationship with Kennedy changed after Kennedy learned of the condition, and that Kennedy began stripping her of “‘main responsibilities,’” reassigning the open-enrollment program and advertising, sending work to freelancers, and removing Moore from oversight roles. (Id. at pp. 227–228.)

The demotion, the surgery request, and the termination. In mid-November 2010 Kennedy demoted Moore through a restructuring; her salary stayed the same but certain benefits were reduced, and Kennedy told staff this “‘was the last layoff that was going to happen.’” (Moore, supra, 248 Cal.App.4th at p. 228.) In December 2010 Moore told Kennedy she would likely need a pacemaker implanted in early 2011 and would need “‘only’” a “‘few days off work’”; in January 2011 she said she had postponed surgery and “‘would need “like two or three” days off in April 2011.’” (Ibid.) Kennedy “did not say anything in response” and later had “no recollection” of these discussions. (Ibid.) On February 2, 2011 — about two months after the surgery notice — Kennedy emailed HR to eliminate Moore’s position effective February 15, 2011. (Id. at pp. 228–229.) Moore was terminated on February 15, 2011, told she was laid off because her position was eliminated due to “‘lack of work’” and “‘budget reasons.’” (Id. at p. 230.)

The policy departures. HR asked Kennedy to explain why a more junior director, Karen Shea, “‘should be retained out of seniority,’” citing the policy that layoffs proceed “‘in inverse order of seniority’” unless a junior employee “‘possesses special skills, knowledge, or abilities’” the senior employee lacks. (Moore, supra, 248 Cal.App.4th at pp. 228–229.) Moore was senior to Shea and they shared “‘the same payroll, title, and the same classification.’” (Id. at p. 229.) Kennedy explained the elimination of Moore’s position but “did not provide information regarding her assessment as to any ‘special skills, knowledge, or abilities’ that Shea possessed and Moore did not,” and conceded Moore “‘[p]robably’” had the “‘skills to fill’” Shea’s role, which Shea had held “‘only … for a few months.’” (Id. at pp. 229–230.) Despite policies favoring reassignment, transfer, and a “‘right to recall,’” Kennedy never asked Moore to accept a pay cut, never offered her any of the eight positions added between November 2010 and May 2011 (chiefly in design and production — Moore’s background), and never considered her for a freelance position. (Id. at pp. 230, 239–240.)

Procedural history

Moore filed suit on January 28, 2013, alleging six causes of action: FEHA disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, plus CFRA interference and CFRA retaliation. (Moore, supra, 248 Cal.App.4th at p. 230.) The Regents moved for summary judgment, and the trial court (Judge Katherine A. Bacal) granted it, concluding Moore had not demonstrated triable issues on any cause of action; judgment was entered for the University and Moore timely appealed. (Id. at pp. 230–231.)

The Court of Appeal, Fourth Appellate District, Division One, in a unanimous opinion by Justice Aaron, affirmed in part and reversed in part. It reversed summary adjudication on the first, second, third, fifth, and sixth causes of action (discrimination, failure to accommodate, failure to interact, CFRA interference, and CFRA retaliation), and affirmed only on the fourth (FEHA retaliation). (Moore, supra, 248 Cal.App.4th at pp. 225, 254–255.) The opinion was originally unpublished and was “Changed by the Court from Unpublished to Published June 20, 2016.” (Id. at p. 216 [Subsequent History].) There was no dissent.

Issue

The controlling question was whether the University, as the moving party, had negated Moore’s right to prevail on each cause of action — that is, whether, viewing the evidence in the light most favorable to Moore, a reasonable fact finder could find that the proffered restructuring rationale was pretextual and that the real motive was Moore’s perceived disability. (Moore, supra, 248 Cal.App.4th at pp. 231, 237–238.) Embedded sub-questions included: whether an employer can be liable for failing to accommodate or interact with an employee it merely regards as disabled; whether a pre-amendment request for accommodation is “protected activity” supporting FEHA retaliation; and whether an employee “exercise[s]” CFRA leave rights, for retaliation and interference purposes, by giving notice of a qualifying need without invoking CFRA by name.

Holding

Reasoning

The summary-judgment posture reversed the usual burden. The court stressed that on summary judgment the burden “‘is reversed’” — it “‘rests with the moving party to negate the plaintiff’s right to prevail on a particular issue.’” (Moore, supra, 248 Cal.App.4th at p. 236, quoting Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327.) A summary judgment “‘cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law,’” and the court must view the evidence favorably to Moore, “‘liberally construing [her] evidentiary submission while strictly scrutinizing the defendants’ own showing.’” (Id. at pp. 231–232.) The court repeatedly returned to the maxim that employment cases “‘present issues of intent, … motive,’” which “‘are rarely appropriate for disposition on summary judgment.’” (Id. at p. 236, quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243.)

McDonnell Douglas, direct evidence, and the disability-case exception. The court recited the familiar three-stage McDonnell Douglas framework adopted in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317: the plaintiff’s prima facie case raises a presumption; the employer rebuts with a “‘legitimate, nondiscriminatory reason’”; the presumption “‘disappears,’” and the plaintiff must show pretext “‘or … offer any other evidence of discriminatory motive.’” (Moore, supra, 248 Cal.App.4th at pp. 234–235.) Notably, the court flagged in a footnote the emerging principle that disability cases may be an exception: quoting Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, it observed that “‘disability discrimination cases often involve direct evidence,’” and that where “‘a plaintiff presents direct evidence of the employer’s motivation … the McDonnell Douglas “three-stage framework … do[es] not apply.”’” (Id. at p. 234, fn. 3.) But the court expressly declined to treat Moore as such a case, because “the parties dispute the employer’s reasons for terminating Moore’s employment.” (Ibid.) Having framed the claim as a circumstantial one, the court proceeded under McDonnell Douglas — illustrating that the direct-evidence shortcut is reserved for cases where the disability’s role in the decision is essentially conceded, not contested as here.

Pretext from suspicious timing, the supervisor’s identity, and prior performance. The court accepted the trial court’s findings that Moore stated a prima facie case (on a perceived-disability theory) and that the University offered a legitimate restructuring rationale; it parted ways only at stage three. (Moore, supra, 248 Cal.App.4th at pp. 237–238.) Applying the rule that “‘[p]retext may … be inferred from the timing of the company’s termination decision, by the identity of the person making the decision, and by the terminated employee’s job performance before termination,’” the court emphasized Moore’s “rapid ascension,” followed — “only two months after Moore informed Kennedy that she would need some time off for a surgery” — by elimination of her position rather than a transfer or further demotion. (Id. at pp. 238–239, quoting Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467.)

The decisive evidence — departures from the employer’s own policies. Citing Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252 for the proposition that “‘a departure from normal procedures “might afford evidence that improper purposes [played] a role,”’” the court catalogued the University’s policy breaches. (Moore, supra, 248 Cal.App.4th at p. 239.) Kennedy retained the junior Shea over the senior Moore without ever identifying the “‘special skills, knowledge, or abilities’” the seniority policy required, while conceding Moore “‘[p]robably’” could do Shea’s job. (Id. at pp. 239–240.) She ignored the “‘preferential … reassignment or transfer’” and “‘right to recall’” policies, never offering Moore any of the eight new positions — many in Moore’s own design-and-production specialty. (Id. at p. 240.) “[T]here remain significant questions as to whether Defendant followed its own stated policies.” (Ibid.)

The “liability” remark as evidence of animus. Beyond pretext, the court found independent evidence of discriminatory motive. Kennedy’s inquiry to HR about employees “‘with adverse health issues,’” and especially her statement that she had contacted HR to learn “‘how to handle [Moore] as a liability to the department,’” “could reasonably be viewed by a fact finder as evidence of a discriminatory animus toward Moore’s perceived disability.” (Moore, supra, 248 Cal.App.4th at pp. 240–241.) The court was careful — twice in footnotes — to disclaim any suggestion that Kennedy in fact harbored animus, noting only that “‘one could reasonably conclude that such animus existed.’” (Id. at p. 241, fn. 6.) Because “issues of intent and motive are typically not appropriate for disposition on summary judgment,” reversal followed. (Id. at p. 241.)

Accommodation and interactive process attach to the “regarded as” employee. The trial court had reasoned that Moore could not prevail on accommodation or interactive-process claims because “‘she did not have a disability that required accommodation.’” (Moore, supra, 248 Cal.App.4th at p. 242.) The Court of Appeal rejected that premise outright: under Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, “‘employers must reasonably accommodate individuals … including those “regarded as” disabled, and must engage in an informal, interactive process.’” (Ibid.) Because “‘[a] term of leave from work can be a reasonable accommodation,’” Moore’s request for surgery time off “can be considered to be a request for accommodation,” and the University presented no evidence it engaged in any interactive process before terminating her. (Id. at p. 243.) The court added a vital anti-circumvention principle: “‘a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.’” (Id. at pp. 243–244.)

FEHA retaliation — the pre-amendment rule, and why the 2016 fix is prospective. The one claim the University won turned on what counts as “protected activity.” Moore had alleged she was retaliated against for “‘notifying’” the University of her condition and requesting leave. (Moore, supra, 248 Cal.App.4th at p. 244.) Following Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, the court held that “‘a mere request — or even repeated requests — for an accommodation, without more,’” is not protected activity, because protected activity requires “‘some degree of opposition to or protest of the employer’s conduct.’” (Id. at pp. 244–245.) Moore argued the Legislature’s 2015 enactment of Assembly Bill 987 — adding section 12940, subdivision (m)(2) to protect accommodation requests — “‘supersede[d] Rope.’” (Id. at p. 245.) The court agreed the amendment changed the rule but held it operates prospectively only. Because AB 987 “does not contain an express retroactivity provision,” and because “‘a substantial or material statutory change … bespeaks legislative intention to change, and not just clarify, the law,’” the court “presume[d] that in passing Assembly Bill 987, the Legislature intended to change the law, not clarify it.” (Id. at pp. 246–247.) The Legislature’s own preamble confirmed prospectivity: “‘[t]here would be no need to provide protection against retaliation by enacting additional provisions if the Legislature believed that such protection had always been provided.’” (Id. at p. 247.) The court added a separate, durable holding: merely “‘[n]otifying one’s employer of one’s medical status’” — even a disabling one — “‘does not fall within the protected activity identified in subdivision (h).’” (Id. at pp. 247–248.)

CFRA retaliation — notice of a qualifying need can be the “exercise” of the right. On the CFRA retaliation claim the court rejected the University’s argument that Moore never “‘exercised her right to take leave.’” The “‘relevant question … is not whether a plaintiff expressly requested CFRA leave,’” but whether she exercised a right to leave for “‘a qualifying CFRA purpose.’” (Moore, supra, 248 Cal.App.4th at pp. 248–249, quoting Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864.) Under the implementing regulation, an employee “‘need not expressly assert rights under CFRA … or even mention CFRA,’” and the employer “‘should inquire further’” when given a qualifying reason; thus “an employer bears a burden … to inquire further.” (Id. at p. 249.) Moore’s notice of heart surgery sufficed to raise a triable issue, and the pretext analysis from the discrimination claim carried over. (Id. at pp. 249–250.)

CFRA interference — the threshold notice obligation defeats summary judgment. An interference claim, the court explained, “‘does not invoke the burden shifting analysis of the McDonnell Douglas test,’” requiring only entitlement to CFRA leave and interference with or denial of it. (Moore, supra, 248 Cal.App.4th at p. 250.) Distinguishing Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014) 743 F.3d 1236 — where a jury found the employee affirmatively declined FMLA leave — the court found no evidence Moore knowingly declined CFRA leave, particularly because “‘if Moore did not even realize that she had a right to such leave, a fact finder could conclude that she did not affirmatively decline to use [it].’” (Id. at pp. 251–252.) Decisively, the University never established it met its threshold duty to “‘provide notice to their employees of the right to request CFRA leave,’” and “‘[a] failure to notify an employee of his rights … can constitute interference.’” (Id. at pp. 252–253.) “There is nothing in the separate statements of undisputed facts that would indicate that Defendant either posted notice or specifically provided notice to Moore of her leave rights under CFRA.” (Id. at p. 253.)

The disposition. The court reversed summary judgment, directed that the University was not entitled to summary adjudication on the first, second, third, fifth, and sixth causes of action, affirmed summary adjudication on the fourth, and remanded; Moore recovered her costs on appeal. (Moore, supra, 248 Cal.App.4th at pp. 254–255.) The panel was unanimous, with no concurrence or dissent.

Significance

It is a leading summary-judgment-defeat opinion on perceived-disability pretext. Moore is a workhorse citation for plaintiffs resisting summary judgment in FEHA disability cases. It collects the strongest pro-employee framing of the standard — the burden is “‘reversed,’” intent cases are “‘rarely appropriate’” for summary disposition — and then demonstrates, claim by claim, how a single supervisory remark and a pattern of policy departures generate triable issues. (Moore, supra, 248 Cal.App.4th at pp. 236, 240–241.) Decided in the wake of Harris v. City of Santa Monica (2013) 56 Cal.4th 203, it applies the “substantial factor” causation standard while keeping the McDonnell Douglas machinery intact for contested-motive cases. (Id. at p. 234.)

It clarifies the direct-evidence boundary. By citing Wallace‘s recognition that disability cases “‘often involve direct evidence’” yet declining to bypass McDonnell Douglas because the employer’s motive was disputed, Moore helps mark where the direct-evidence exception begins and ends. (Moore, supra, 248 Cal.App.4th at p. 234 & fn. 3.) The lesson: the framework drops out only when the disability’s causal role is effectively admitted; where the employer offers and the plaintiff contests a nondiscriminatory reason, the burden-shifting analysis governs.

It cements the “regarded as” accommodation duty and the AB 987 timeline. Moore reaffirms Gelfo‘s holding that accommodation and interactive-process duties extend to employees merely perceived as disabled, and supplies the anti-circumvention rule that a pretextual firing cannot excuse the failure to accommodate. (Moore, supra, 248 Cal.App.4th at pp. 242–244.) It is also the principal published authority fixing the dividing line for AB 987: accommodation requests are protected activity for FEHA retaliation only as to conduct on or after January 1, 2016; before then, Rope controls. (Id. at pp. 246–248.) That timeline still governs older claims and statute-of-limitations disputes.

Key quotes

“The reference to Moore being a ‘liability to the department’ with respect to her heart condition could reasonably be viewed by a fact finder as evidence of a discriminatory animus toward Moore’s perceived disability.” (Moore, supra, 248 Cal.App.4th at p. 241.)

“[A] pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing reasonable accommodation or engaging in the interactive process does not provide an employer a reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Id. at pp. 243–244.)

“[I]n 2011, at the time Moore alleges Defendant engaged in the asserted retaliation, the law was consistent with the holding of Rope … a request for an accommodation, without more, was insufficient to constitute ‘protected activity’ under section 12940, subdivision (h).” (Id. at p. 247.)

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Practice pointer

Open questions

Actual disability. The court “‘[did] not address’” Moore’s contention that she suffered an actual disability (heart disease), because she raised it only “‘in a footnote,’” leaving unresolved on this record whether her cardiomyopathy independently qualified. (Moore, supra, 248 Cal.App.4th at p. 237, fn. 4.)

Whether a jury will find animus. The court twice reserved the merits, stating it did “‘not intend to suggest that, at trial, a fact finder should or will … draw the same inferences,’” and that it was “‘simply saying that based on this evidence one could reasonably conclude that such animus existed.’” (Moore, supra, 248 Cal.App.4th at pp. 238, fn. 5, 241, fn. 6.)

Evidentiary rulings. The court “‘need not address’” Moore’s challenges to several of the trial court’s evidentiary rulings, finding them “‘irrelevant to [its] determination,’” so those rulings’ correctness remains open on remand. (Moore, supra, 248 Cal.App.4th at pp. 253–254.)