Workplace Absences and How They Can Influence Your California Disability Discrimination Case

DeejayA recent case involving a radio DJ and her former employer is very useful in some of the lessons it imparts. Not the least of these are that you should not give up on your case at the first sign of a setback, and there can be more than one way to prove necessary elements of Fair Employment and Housing Act disability discrimination cases. In the case, the California Court of Appeal threw out a summary judgment in favor of the employer because, even if the employee’s disability did not affect her on-air performance, it could still qualify as impairing the major life activity of working if it forced her to miss work frequently.

The employee in the case, Sofia Soria, was a successful DJ for KLVE-FM 107.5, a Spanish Adult Contemporary station owned by Univision Radio Los Angeles, Inc. Soria had been a Univision Radio employee for 14 years, including nine years (2002-2011) as the mid-day DJ on KLVE. In 2007, Soria’s doctors found a tumor where her esophagus met her stomach. In 2011, they discovered that the tumor had grown and recommended surgical removal within the following few weeks. Unsure about having surgery, Soria sought second, third, and fourth opinions from other doctors. All of them recommended the surgery. Soria allegedly told her supervisors that she wanted to have the surgery in December.

During a six-month stretch in 2011, Soria missed work or arrived late nine times, due to tumor-related doctor appointments. By November 2011, the station terminated Soria for rampant tardiness. In addition to the medical appointments, the station accused the DJ of arriving to work mere minutes before (or even after) her show began at 10:00 am, even though the employer’s rules required DJs to arrive at work at least 30 minutes before their shows started.

After the termination, the DJ launched a FEHA lawsuit against Univision Radio. The employer, she contended, engaged in illegal disability discrimination, failure to accommodate, failure to engage in an interactive process, and retaliation. Soria’s complaint essentially accused the employer of terminating her due to her need for leave and disability or perceived disability.

The employer opposed the lawsuit on two central grounds. It argued that Soria did not have a disability under the FEHA that impeded her ability to do her job, and, even if the DJ was disabled, her frequent tardiness was a legitimate, non-discriminatory reason for terminating her. The employer won in the trial court, with that court issuing a summary judgment in favor of the employer. The trial judge concluded both that Soria wasn’t disabled and that the employer’s stated reason for firing her was a legitimate, non-discriminatory one.

It is important to remember that, even if your opponent may have won initially, you should not necessarily give up. Soria appealed and won on appeal. Firstly, the appeals court explained that the trial court was wrong in concluding that Soria had no condition that entitled her to FEHA protection. California’s FEHA law protects employees from discrimination based upon their physical disabilities and also based upon their medical conditions. The statute defines a qualifying medical condition as any “health impairment related to or associated with a diagnosis of cancer or a record or history of cancer, or a genetic characteristic.” While an employee alleging a physical disability must show to the court that her disability affects one or more daily life activities, an employee claiming to have a qualifying medical condition is not required to offer any life-activity proof.

Unfortunately for Soria, she had not pleaded a “medical condition” argument sufficiently to allow the appeals court to rule in her favor on that. However, she did have a strong enough case when it came to her physical disability. In Soria’s complaint, she alleged that she had a stomach tumor that might or might not be cancerous and that the impact from that tumor “limited her ability to participate in a major life activity such as work.” While the appeals court agreed with the employer that Soria’s tumor was basically asymptomatic and did not make it more difficult for her to work, that, by itself, was not enough to prove that the tumor did not affect the DJ’s work. The evidence in the case indisputably showed that Soria took nine absences from work in 2011 to attend medical appointments related to the tumor. A jury, the court explained, could conclude that a surgery to remove the mass or multiple follow-up appointments to monitor it would mean several more absences from work. These kinds of recurring or “extended absences from work may constitute a limitation on the major life activity of working,” the court explained.

How Employment History Can Help You Establish Pretext

The appeals court also decided that Soria had enough evidence to argue that the employer’s stated reason for terminating her — tardiness — was just a pretext. When advancing an argument of pretext, you can strengthen your case by bringing proof of a strong job performance history. Soria’s last job review, in February 2011, was entirely positive. The review stated that her on-air content was “well-executed,” and she was “always prepared” and had developed a “brighter sound to her delivery.” It also helps if you have evidence that the alleged basis for your termination was not an issue until your employer decided to fire you. In Soria’s case, she had evidence that she had consistently showed up late to work for years, and this had never been an issue (including no mention of any tardiness problems in her performance reviews) right until the employer decided to terminate her, allegedly for tardiness, mere weeks after she notified the employer about her possible need for surgery.

There are many different paths that you can choose as you seek a fair remedy for the employment discrimination you suffered. The hardworking team at the Law Offices of Stephen M. Fuerch focuses on Oakland employment law and can help you analyze all of your options and help you pick a method that will give you a strong chance of success. We have been aiding employees with their discrimination cases for many years and are ready to help you pursue your case. Contact us through our website or call our office at (925) 463-1073 to schedule your confidential initial consultation today.

More Blog Posts:

California Employee Allowed to Continue Disability Discrimination Case Despite Failure to Obtain Doctor’s Note About Limitations, Oakland Personal Injury Attorney Blog, Sept. 30, 2016

EEOC’s Investigation in California Man’s Discrimination Claim Extends Filing Deadline, Making Lawsuit Timely, Oakland Personal Injury Attorney Blog, Aug. 15, 2016