Do anxiety and stress relative to employee’s interaction with supervisor causing an inability to work under that supervisor constitute a disability recognized by FEHA?

Posted in: Employment Law by Steven Vartabedian on

anxietyIn Higgins-Williams v. Sutter Medical Foundation (filed 5/26/2015) C073677, plaintiff worked as an assistant in patient intake at one of defendant’s clinics.  Her immediate supervisor was Debbie Prince, who reported to regional manager Norma Perry.  After about 3 years on the job, plaintiff reported to her treating physician she was suffering stress because of interactions with human resources and her manager.  The physician diagnosed adjustment disorder with anxiety whereupon defendant granted plaintiff a stress related disability leave of absence under CFRA and FLMA, and a further leave of absence after leave under those acts was exhausted.

The very day plaintiff returned to work, she received here first negative performance evaluation from Prince, which was also signed by Perry.  About one month later, claimed plaintiff, Perry singled her out for negative treatment;   one incident involved Perry grabbing plaintiff’s arm and yelling at her, claiming she was irresponsible with her ID badge.  Suffering from a consequent panic attack, plaintiff left work, never to return.  She did request transfer to a different department, and pursuant to her physician’s request, she was granted a leave of absence.

After about 20 weeks of plaintiff’s leave, defendant advised she would be terminated in one week unless her doctor could essentially substantiate a date when she could return to her clinical position.  Her requested further accommodation, supported by her doctor, had been return to work in a different department or under different supervisors, or to transitional light duty.  None of these requests were granted.  Neither the doctor nor plaintiff confirmed she could return to her job; although plaintiff claimed she was willing to “try” to return to work one month later than defendant demanded.  Defendant terminated her at the end of their stated deadline.

Plaintiff sued, claiming disability discrimination and wrongful termination.   Defendant’s motion for summary judgment was granted by the trial court.  The Court of Appeal, Third Appellate District, affirmed, agreeing that the undisputed facts failed to show plaintiff was “disabled.”

For those defense attorneys who are salivating at the opportunity to cite Higgins-Williams and/or the case upon which it relies, Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614,  I would provide some cautionary thoughts.  Hobson has been disapproved (in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019) )  because it applies the narrower federal test of disability (substantially limits a major life activity) rather than the broader California test; and the Ninth Circuit has questioned Hobson’s notion that inability to perform one particular job does not constitute a disability.   The Higgins-Williams court is not bothered by these criticisms of Hobson, content that no decision has specifically questioned the point that that anxiety and stress related to a specific supervisor’s standard oversight does not constitute a mental disability under FEHA.  Some might argue the distinction is illusory.

Additionally I am a bit puzzled by there being no discussion of perceived disability or retaliation.  From simply reading the appellate opinion, I cannot, of course, tell what exactly was pled, factually shown and argued.  So my thoughts are no substitute for decisions reached by the trial and appellate courts on the record before them. But I wonder if a case can be made that an employer, having granted this much leave for “disability,” perceived the employee as disabled until the time came to support the termination.  Certainly, an employee who gets her first negative performance evaluation on the day she returns from her disability leave can claim the proximity of claimed enmity to or retaliation against her exercise of her leave that the employer perceived as due to her claimed or actual disability.   It could well be that plaintiff here did not plead and present such facts that would support the viability of the claimed disability-based causes of action.

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