Glynn v. Super. Ct.

Filed 11/13/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR JOHN GLYNN, B296735

Petitioner, (Los Angeles County Super. Ct. No. v. BC636862) THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

ALLERGAN, INC., et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Stephanie M. Bowick, Judge. Petition granted in part and denied in part. Magnanimo & Dean, Frank A. Magnanimo; Alexander Krakow & Glick LLP, Tracy L. Fehr for Petitioner. Paul Hastings, Stephen L. Berry and Blake R. Bertagna for Real Parties in Interest.

INTRODUCTION A temporary corporate benefits staffer mistakenly thinks an employee has transitioned from short term disability (STD) to long term disability (LTD) and is unable to work with or without an accommodation. She fires him. The terminated employee tries to correct the misunderstandings, but for months the corporation ignores his entreaties. Does this constitute direct evidence of disability discrimination under the Fair Employment and Housing Act (FEHA) (Government Code § 12900 et seq.)? For the reasons described below, we decide it does, and therefore reverse the portion of the trial court’s order granting the corporation’s motion for summary adjudication of the employee’s disability discrimination cause of action. We also reverse the portions of the order granting summary adjudication of the employee’s retaliation, failure to prevent discrimination, and wrongful termination causes of action. We publish to clarify that even a legitimate company policy, if mistakenly applied, may engender FEHA disability discrimination liability.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner John Glynn worked for real parties in interest Allergan, Inc. and Allergan USA, Inc. (collectively, Allergan) as a pharmaceutical sales representative. His primary duties involved driving to doctors’ offices to promote Allergan’s pharmaceutical products. In January 2016, Glynn requested, and Allergan approved, a medical leave of absence for a serious eye condition (myopic macular degeneration). Glynn’s doctor provided a medical certification designating Glynn’s work status as “no work” because Glynn “can’t safely drive.”

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Allergan’s reasonable accommodation policy lists “reassignment to a vacant position” as a potential accommodation. Thus, while on medical leave, Glynn repeatedly asked for help getting a new job within the company that did not require driving, and applied for several open positions, but Allergan never reassigned him. On July 20, 2016, a temporary Allergan benefits department employee, Anne Marie Perosino, sent a letter to Glynn informing him that his employment was being terminated effective July 20, 2016: “We received notification from Matrix System of your approval for Long Term Disability, effective July 20, 2016. According to the Allergan Family and Medical Leave (AFML) policy, you will no longer be eligible to remain on Inactive Status and your employment has ended on 07/20/16, due to your inability to return to work by a certain date with or without some reasonable workplace accommodation.” Perosino mistakenly believed that Glynn’s termination was required under Allergan’s policy and practice. Allergan’s actual policy, however, is that termination is required once the employee has applied, and been approved, for LTD benefits; not, as Perosino believed, once an employee’s “transition date” from STD to LTD benefits (i.e. the date the employee becomes eligible for LTD benefits) has passed. At no point did Glynn apply for LTD, and it is undisputed that he could have returned to work with reasonable accommodation. The day after his termination, Glynn emailed a letter to the members of the Allergan Human Resources Department, including its director, stating he never applied for LTD, that he could work in any position that did not require driving, and protesting the mistaken decision to terminate him.