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Glynn v. Superior Court (Allergan, Inc.)

California Court of Appeals, Second District, Fourth Division

November 13, 2019

JOHN GLYNN, Petitioner,
v.
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 Los Angeles County Super. Ct. No. BC636862.

          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.

          CURREY, J.

         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.”

         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.

         Glynn was not reinstated, so he sued Allergan alleging eight causes of action: (1) disability discrimination; (2) failure to engage in the interactive process; (3) failure to accommodate disability; (4) retaliation; (5) failure to prevent discrimination and harassment; (6) retaliation in violation of Labor Code section 1102.5; (7) wrongful termination/adverse treatment in violation of public policy; and (8) intentional infliction of emotional distress.

         Nine months after Glynn informed Allergan he was not on LTD and was ready and willing to work in a suitable position, and after he filed suit, Allergan's Chief Human Resources Officer, Karen Ling, sent Glynn a letter stating her belief that “the human resources personnel involved... sincerely believed the actions taken were appropriate... [but that the reasonable accommodation] process could and should have been handled better, ” and conceding “[his] employment should not have been ended.” Ling offered to reinstate Glynn unconditionally with full back pay and to continue his pay and benefits at the level he was receiving before he went out on medical leave while he identified a job to which he wanted to be assigned and for which he was qualified. Glynn responded by rejecting Allergan's offer of reinstatement because Ling's letter did not identify any specific position being offered or the compensation, and Glynn's stated belief that Allergan would continue to mistreat him and fail to place him in an open position. Ling sent another letter to Glynn asking him to reconsider his rejection of her reinstatement offer. Glynn responded to Ling's second letter, again rejecting the reinstatement offer because he did not “believe [her] offer was made in good faith.” Glynn's treating psychologist also declared Glynn's psychological well-being would have been negatively affected had he returned to Allergan. Glynn's rejection of Ling's reinstatement offers became the basis for Allergan's failure to mitigate damages affirmative defense.

         Allergan moved for summary judgment or, alternatively, summary adjudication of each cause of action. It also moved for summary adjudication of its failure to mitigate damages affirmative defense and Glynn's request for punitive damages. In a lengthy and detailed ruling, the trial court denied Allergan's motion for summary judgment, but granted summary adjudication in favor of Allergan on Glynn's causes of action for: (1) disability discrimination; (2) retaliation; (3) failure to prevent discrimination and harassment; (4) retaliation in violation of Labor Code section 1102.5; (5) wrongful termination/adverse treatment in violation of public policy; and (6) intentional infliction of emotional distress. It also granted Allergan's motion for summary adjudication of its failure to mitigate affirmative defense and the unavailability of punitive damages. The court denied Allergan's motion for summary adjudication of Glynn's causes of action for (1) failure to engage in the interactive process and (2) failure to reasonably accommodate his disability.

         Glynn filed a petition for writ of mandate in this court to reverse the trial court's summary adjudication on all causes of action and defenses except summary adjudication of his claims for Labor Code section 1102.5 retaliation and intentional infliction of emotional distress. We issued an alternative writ ordering the court to either: (1) vacate its summary adjudication order and instead enter a new order denying the motion on the following causes of action: the first cause of action for disability discrimination on the ground Glynn has shown direct evidence of disability discrimination; the fourth cause of action for disability-related retaliation on the ground Glynn demonstrated triable issues of material fact; the fifth cause of action for failure to prevent discrimination and harassment; and the seventh cause of action for wrongful termination/adverse treatment in violation of public policy on the ground that these causes of action ...


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