Nasser vs. Cotton Links LLC

With respect to Objection Nos. 2 and 5, the identified evidence was not cited by Plaintiff within his Separate Statement and, consequently, was not reviewed. Thus, these objections are not material to the resolution of this motion and rulings are unnecessary. (Code Civ. Proc., § 437c, subd. (q).)

Initially, Defendant seeks adjudication of Plaintiff’s disability related claims, based on its assertion Plaintiff was never diagnosed with a disability. In support of this argument, Defendant cites SSUF Nos. 10 and 11, wherein it asserts “Plaintiff was never diagnosed with ‘long-haul COVID-19’” and “Plaintiff only tested positive for COVID-19 one time.” (See SSUF Nos. 10-11 [ROA No. 258].)

Defendant’s identified facts rely on the lack of a diagnosis and positive test results; however, the stated facts do not establish that Plaintiff was neither “disabled” nor perceived as such, as relevant under FEHA.

“Under FEHA, a person is ‘physically disabled’ when he or she has a physiological condition that ‘limits a major life activity.’” (Sandell v. Taylor- Listug, Inc. (2010) 188 Cal.App.4th 297, 311 (Sandell); See also Gov. Code, § 12926, subd. (m)(1)(B).) “[A] qualifying disease or condition ‘limits a major life activity if it makes the achievement’ of the activity ‘difficult.’” (Sandell, supra, 188 Cal.App.4th at p. 311.) Additionally, “major life activities,” “shall be broadly construed and includes physical, mental, and social activities and working.” (Gov. Code, § 12926, subd. (m)(1)(B)(iii).

Similarly, a “physical disability” includes “[b]eing regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.” (Gov. Code, § 12926, subd. (m)(4).)

While Defendant asserts Plaintiff was never diagnosed with “long haul COVID- 19” and only tested positive for COVID-19 once, Defendant cites no authority which requires a formal diagnosis, to establish a disability.

Based on the authority cited above, the relevant question is whether Plaintiff suffered from a condition that affected a major life activity or was perceived as such. (See Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 311 and Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.)

As Defendant offered no evidence or analysis relevant to these questions, Defendant failed to meet its initial burden, as to this portion of the motion.

Additionally, regardless, the evidence indicates a triable issue exists, as to whether Plaintiff suffers from long-haul COVID-19 and whether the same qualifies as a disability, for purposes of FEHA: Despite the lack of a formal diagnosis, Plaintiff testified that an ER doctor used the phrase “long-haul COVID,” while treating Plaintiff. (Defense Exhibit 1: Beghtol Deposition: 109:18-23 [ROA No. 248].) Per Plaintiff, the ER doctor indicated he had symptoms of long-haul COVID. (¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 108:15-21 [ROA No. 266].)

Plaintiff also testified that he communicated to Defendant, that he was suffering from long-haul COVID-19 and needed accommodation, in the form of his schedule not being stacked. (Defense Exhibit 1: Beghtol Deposition: 109:24- 110:6 [ROA No. 248]; See also ¶3 of Gleason Declaration and Exhibit 2 thereto, Beghtol Deposition: 108:7-14 and 118:7-14 [ROA No. 266].)