• Employee Stated a Claim for Associational Discrimination when Fired After Seeking Time Off to Donate a Kidney to his Sister
  • December 5, 2013
  • Law Firm: Kronick Moskovitz Tiedemann Girard A Law Corporation - Sacramento Office
  • A trial court dismissed a lawsuit by a former employee against an employer who fired him after he requested leave to donate a kidney to his physically disabled sister. A court of appeal held that the trial court erred in dismissing the employee’s claims for association-based disability discrimination, failure to maintain a discrimination free workplace, and wrongful termination because the employee pleaded facts sufficient to support these claims. (Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635).

    When Scott Rope (“Rope”) started his employment with Auto-Chlor System of Washington, Inc., (“Auto-Chlor”) in September 2010, he requested leave to begin in February 2011 because he planned to donate a kidney to his physically disabled sister. In November 2010, Rope learned that the Michelle Maykin Memorial Donation Protection Act (“DPA”), Labor Code sections 1508-1513, would go into effect on January 1, 2011. The DPA provides that certain private sector employees are entitled to 30 days paid leave for organ donation. Rope asked Auto-Chlor for 30 days paid leave. In November 2010, the human resources department told Rope he could take unpaid leave, but it did not respond to his request for paid leave.

    Two days before the DPA’s effective date, Auto-Chlor terminated Rope’s employment, citing poor performance, even though he had no prior unsatisfactory performance reviews or disciplinary problems. Rope filed a lawsuit against Auto-Chlor alleging various violations of the Labor Code and the Fair Employment and Housing Act (“FEHA”) and wrongful termination in violation of public policy. Auto-Chlor filed a demurrer, which the trial sustained.

    The court of appeal held that although the trial court erred in dismissing some of Rope’s claims, he stated causes of action for association-based disability, failure to maintain a workplace free of discrimination in violation of the FEHA, and wrongful termination in violation of public policy. Rope failed to state a cause of action under the DPA because the DPA is not retroactive and the alleged discrimination happened two days before the DPA became effective. The enactment of the DPA in 2010 made substantive changes to the law rather that merely clarifying prior law. There is nothing in the DPA’s legislative history that indicates the legislature intended the DPA to apply retroactively.

    Rope also failed to state a claim under Labor Code section 1102.5, which is a whistleblower statute. Rope did not allege that he reported information to the government or that he refused to violate the law. Rope also failed to state a claim under Labor Code section 98.6, which provides that an employer cannot discharge or discriminate against an employee on the basis that the employee engaged in conduct that is protected by the Labor Code. Rope failed to sufficiently allege he engaged in any conduct protected by the Labor Code or the DPA. Rope cannot state a claim under the Private Attorneys General Act because the alleged violations of which Rope complained fell under the DPA, which was not effective at the time Auto-Chlor terminated his employment.

    Rope failed to state a retaliation claim under the FEHA because Rope’s request for paid leave as an accommodation is not protected activity within the meaning of the FEHA. Rope did not claim to have opposed any conduct that is forbidden by the FEHA. A mere request for an accommodation, without any further action, does not constitute a protected activity that is sufficient to support a retaliation claim.

    However, the court held that Rope adequately stated a cause of action under the FEHA for associational discrimination based on his relationship or association with his sister, who is physically disabled. Pursuant to the FEHA, it is unlawful for an employer to discharge or discriminate against a person because of a physical disability. The FEHA also “makes clear that its prohibition against discrimination on the basis of physical disability ‘includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.’”

    Rope alleged that Auto-Chlor fired him to avoid paying him for leave under the DPA, which is a law that is intended to facilitate donation of organs to individuals who are disabled. Rope met his burden to show that there was an adverse employment action and under the facts alleged by Rope, this raised “a reasonable inference that the disability of his or her relative or associate was a substantial factor motivating the employer’s decision.” If an employer discriminates against an employee because of his or her association with person with a disability, the employer “‘is liable even if the motivation is purely monetary.’” However, “if the disability plays no role in the employer’s decision . . . then there is no disability discrimination.’”

    The court concluded that Rope did not state a claim under the FEHA for his actual or perceived disability. The record shows that Auto-Chlor fired Rope to avoid paying him for leave, not because he has a physical condition that affects his ability to perform his job.

    Rope did state a claim for wrongful termination in violation of public policy and a claim for failure to maintain a discrimination free workplace in violation of the FEHA. These claims were based on Rope’s associational disability allegations and Rope will be allowed to proceed against Auto-Chlor on these claims.