Takeaway: An employee who was fired after she requested two weeks off to recover from surgery was not disabled, and so her employer did not violate the California Fair Employment and Housing Act in terminating her.
Substantial evidence supported a jury’s conclusion that an employee who was fired after she requested two weeks off to recover from surgery was not disabled, a California appeals court recently ruled. Therefore, her former employer did not violate the California Fair Employment and Housing Act (FEHA) in terminating her, the court said.
The employer, an Oxnard, Calif.-based company, manufactures plastic parts for agricultural and pool use. It employs approximately 700 workers. The employee worked at the company as an assembler from July 18 to Nov. 9, 2017.
The company has a leave policy that is included in a packet given to all new employees. The leave policy provides that an employee who requests a leave of absence must have more than one year of employment with the company to be eligible for leave. Under the policy, an employee with less than one year of employment who requests leave will be considered to have resigned, with eligibility for rehire with supervisor approval.
In her disability discrimination lawsuit against the employer, the employee testified that she had painful problems with her digestive system. On Nov. 6, 2017, she went to the hospital emergency room because of the pain. She called her supervisor to let him know, and he excused her from work.
She had surgery on Nov. 7, 2017. She called her supervisor to let him know she was still in the hospital. She was released from the hospital on Nov. 8, 2017, and then called her supervisor and told him she needed two weeks off because of the surgery.
The employee testified that she had emergency stomach surgery. It was not elective surgery that could be scheduled in advance. She said the surgery interfered with her ability to work.
During the less than four months the employee worked at the company, she called in sick nine times. When she called her supervisor on Nov. 8, 2017, he told her that she had no sick days left and, per the leave policy, she had to resign. The company processed her employment termination as a resignation effective Nov. 9, 2017.
The jury returned a verdict in favor of the employer. The employee appealed.
Disability Within the Meaning of FEHA
Under California law, medical leave is required only for employees with more than 12 months and at least 1,250 hours of service with the employer. The purpose of FEHA is to protect employees who have long-term disabilities, and a short-term illness is not a disability, the court said.
Because FEHA is based on the federal Americans with Disabilities (ADA), decisions interpreting federal anti-discrimination laws are relevant in interpreting FEHA’s similar provisions. Federal cases hold that a temporary injury with only minimal residual effects is not a disability, the court noted.
The employee told her supervisor that she did not feel well and had to go to the hospital. She called in sick on two subsequent days; then she told her supervisor she needed two more weeks to recover. There was no evidence she had any residual effects. The evidence shows that the employee had only a brief illness, not a disability, the court said.
Furthermore, even if the employee’s brief illness could qualify as a disability, the jury rejected her claim, and the jury’s conclusion is supported by substantial evidence, the court said.
The court noted that where the trial court or jury has drawn reasonable inferences from the evidence, an appeals court has no power to draw different inferences, even though different inferences may be reasonable. As the plaintiff, the employee had the burden of proof. She gave the jury reason to doubt her credibility, the appeals court said.
The employee testified that she was disabled, but that was the only evidence of a disability. She produced no expert testimony, no hospital records, nothing to support her own inexpert testimony that she was disabled.
Furthermore, the lack of support for her assertions was not the only flaw in the employee’s testimony, the court said. The employer’s lawyer elicited numerous instances of conflict between the employee’s responses to pre-trial discovery and her testimony at trial. She gave such responses at trial as, “Perhaps I answered that, but that’s not the truth,” or simply admitted that her prior statements were false. It appears the cross-examination damaged the employee’s credibility.
The employer here vigorously disputed the employee’s claim of disability. The employee’s credibility was a question for the jury, not for the appellate court, the court said. The appeals court affirmed the trial court’s ruling in favor of the employer.
Juarez v. B & S Plastics, Calif. Ct. App., No. B318909 (Nov. 14, 2023).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.
