LARA & LUNA APC EMPLOYEE RIGHTS UPDATE, 2019

In Ross v. County of Riverside (2019) 2019 WL 2537342 (Cal.App. Fourth Dist Case No. D075106) the plaintiff (Ross) worked as a deputy district attorney assigned to the homicide prosecution unit. Ross had been assigned to a case where, after investigation, Ross believed there was no longer probable cause to file a case against the defendant. Ross recommended a dismissal of the case to his supervisor and the assistant district attorney.

During this same time period, Ross learned that he was exhibiting neurological symptoms requiring medical evaluation in order to determine whether he had a serious neurological condition. Ross told his supervisor that he might be seriously ill with a neurodegenerative disease and needed to undergo medical testing. Ross requested that he be transferred to another assignment during the testing, which his supervisor declined. Ross also asked to not be assigned any new cases until after he completed testing, which was also declined. After Ross continued work on his cases, the chief deputy district attorney offered to transfer Ross to the filing unit. Ross declined the offer because he no longer needed a transfer and also believed the filing unit's quotas would be too stressful for him to meet because of his doctor's appointments. Ross asked to not receive new cases in his current unit, and the chief deputy district attorney agreed. Ross continued to inform his supervisors that multiple doctors from an out-of-state clinic had told Ross that he could not have any stress from work as it was causing many of his symptoms and medical problems. After Ross was assigned a new case, he complained to the chief deputy district attorney, who did not reassign the new case away from Ross. Ross's supervisors, the chief deputy district attorney, and assistant district attorney met with Ross because in their view, Ross' inability to accept new cases or go to trial rendered him unable to continue working in the homicide unit. Ross then informed them that Ross had a concussion syndrome, that he was still being tested, and that his doctors suspected Ross has an unmanifested autoimmune disorder. Ross further requested that his superiors be patient until he completed his testing. After the office requested medical documentation and offered leave, Ross replied that the out of state clinic evaluating his condition had a practice of not supplying such documentation and twice offered to provide a note from his primary physician that he was medically fit to work. After missing additional weeks of work and going back and forth as to the office's request for documentation, Ross' attorneys sent the County a letter stating that no reasonable person could work for the County under the conditions that Ross endured. After exchanging additional letters, the County sent Ross a notice indicating the County considered Ross to have abandoned his job.

Ross proceeded to file a lawsuit against the County and others for violation of Labor Code s1102.5 and FEHA's disability-related provisions. The trial court granted the County's motion for summary judgment as to Ross's claim for violation of Labor Code § 1102.5 because he cannot prove that he engaged in protected activity. The Court also granted the motion as to Ross's FEHA's disability-related claims because Ross could not establish that he was disabled.

The Court of Appeal for the Fourth District issued a decision reversing the trial court's order. With regard to the Labor Code § 1102.5 claim, the Court held that "[a]lthough Ross did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity. (Lab. Code, § 1102.5, subd. (b).)"

With regard to Ross' disability related claims under FEHA, the Court of Appeal reaffirmed the decision in Soria v. Univision Radio Los Angeles Inc. (2016) 5 Cal.App.5th 570, 588-589 which held that "[r]epeated or extended absences from work for medical appointments constitute a limitation on the major life activity of working" for purposes of establishing a physical disability under FEHA. The Court further reasoned that a "physical disability may be temporary or short term ... and includes not only physical impairments that are actually disabling, but also physical impairments that are potentially disabling or are perceived as disabling or potentially disabling. (Gov. Code § 12926.1 subd (b)).....[a] physical disability is perceived as potentially disabling when an employer regards or treats an employee as having a physical impairment that has no present disabling effect but may become a [sic] disabling in the future. (Cal. Cod Regs. Tit. 2 § 10065, (subd) (d)(6))." The Court held that the evidence was sufficient to raise a triable issue of material fact as to whether "Ross had a temporary or short-term physical impairment that was potentially disabling or perceived by the County as potentially disabling enough to transfer Ross from one unit to another unit; request the supply of medical documentation of the impairment, but only from a doctor at the out-of-state client where he was undergoing testing; and place him on a paid leave of absence pending a fitness for duty examination arranged by the County. The physical impairment limited the major life activity of working because it required Ross to be absent from work periodically over several months to travel to an out-of-state clinic for medial testing." The case was then remanded back to the trial court.

Lara & Luna APC continues to monitor new laws and related developments that impact the rights of employees throughout the State of California. The firm believes that educating employees about these issues improves workplaces in particular and our community as a whole. If you have any questions regarding your rights as an employee - from the time that you submit your job application through the conclusion of your employment relationship - please contact our office at (562)444-0010 or visit our website at www.laralunalaw.com

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