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On September 8, 2017, the University sent Dr. Fugar a letter informing him that he was suspended without pay and that termination proceedings were being initiated against him. On September 13, 2017, Dr. Fugar contacted the courthouse, and the court informed him that the trial would not resume until October. Dr. Fugar returned to the University’s campus on September 18, 2017. The presiding judge sent a letter to the University on September 19, 2017, confirming that Dr. Fugar served as a juror on August 22-25, that the trial was postponed, and that his presence was not required in court until October. Following a termination hearing, Dr. Fugar was terminated.

Dr. Fugar filed suit against the University, alleging that the University terminated his employment on the basis of his jury service. The University argued that it terminated Dr. Fugar due to a pattern of missed classes and mandatory University functions dating years prior to his jury service. The trial court agreed with the University and granted summary judgment for the University, dismissing the suit in its entirety. Dr. Fugar appealed.

The Court of Appeal noted that during the motion for summary judgment hearing, the University introduced evidence from depositions that established that Dr. Fugar failed to teach a portion of his required classes and that the University had brought charges against Dr. Fugar based on information compiled from 20152017. The University introduced the Faculty Handbook and numerous emails and correspondence documenting complaints made against Dr. Fugar. The Handbook outlined that the University would institute termination procedures for professional misconduct, which includes flagrant disregard of the policies and procedures of the University, and a continued neglect for academic duties and responsibilities. Dr. Fugar admitted to receiving multiple complaints from the University regarding his absence from classes and harassment of other faculty members. He also admitted that he did not contact his supervisor from August 25 to September 8 to provide an update on his jury service or circumstances, and that as of September 8, three weeks into the semester, he had not provided a syllabus to his classes or made an effort needed to create a syllabus. He admitted that he did not come to campus until a month after classes had begun, and only after termination proceedings had been initiated.

The Court of Appeal determined that this evidence established that he failed to perform his job duties both prior to and after his jury service. The Court of Appeal upheld the motion for summary judgment and dismissed the case.

Fugar v. Dillard University (La. Ct. App., Feb. 13, 2023) 2023 WL 1960835 (unpublished).

Note:

This case emphasizes how important it is for schools to maintain accurate and thorough documentation of employee performance concerns so that schools can rebut claims of wrongful termination.

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Court Finds That Employer’s Decision To Terminate Employee Could Have Been Motivated By Employee’s Disability.

Suchin Lin was hired by Kaiser Foundation Hospitals (Kaiser) in June 1999 and worked for Kaiser in various positions through 2019.

In May 2017, Lin worked as a Software Quality Assurance Associate Engineer in the Innovation and Transformation (I&T) department, one of eight departments within Kaiser’s Technology Risk Organization (TRO). She received positive performance evaluations in this position in March 2018.

In December 2018, the TRO organization began to plan to lay off certain employees for economic reasons and TRO directors were asked to select employees to be included on a list of potential layoffs. The I&T executive director said he chose to eliminate Lin’s position because she was struggling in performing her duties and not getting up to speed as quickly as expected. However, the Court of Appeal noted that contemporaneous documentary records did not reflect these concerns about Lin’s performance.

In January 2019, Lin fell in the workplace and suffered an injury to her left shoulder. Lin’s doctor placed her on modified duty for the next month, with restrictions requiring Lin to use a sling, limit use of her left arm, and given time to attend medical and physical therapy visits. On January 29, 2019, Lin’s supervisor completed numerical ratings of employee competencies for the members of the I&T team as part of the 2019 TRO layoffs. Lin’s supervisor rated Lin with the lowest ratings on the team. The same day, Lin’s supervisor discussed Lin’s performance with human resources, noting that Lin was slow at typing, and would be slower with this injury.

Lin’s doctor extended Lin’s modified duty through the end of March. On February 27, 2019, Lin’s supervisor met with Lin and discussed that Lin’s “unavailability” had occasionally forced her teammates to complete tasks for her and that her “pace of execution needs improvement.” Lin was placed on an action plan, requiring her to manage her tasks within a reasonable time. Lin testified that her supervisor pressured her to work unpaid overtime off the clock. In the wake of this meeting, Lin sent written complaints to human resources about the pressure to work unpaid overtime off the clock, causing her such emotional distress that she could not sleep. Human resources referred her to the employee assistance program, which ultimately led to her referral to a psychiatrist.

In March 2019, Lin met with her supervisor about her 2018 year-end performance evaluation. Lin was again rated “successful,” but her supervisor included notes that she was on the “lower end” of successful and needed improvement in several subcategories. Lin then went on medical leave through May 19, 2019. On April 24, 2019, Kaiser notified Lin that her position had been eliminated and her employment would be terminated effective June 23, 2019.

Lin sued Kaiser alleging disability discrimination, retaliation for requesting accommodations, failure to accommodate, failure to engage in the interactive process, and wrongful termination. Kaiser moved for summary judgment, arguing that the decision to eliminate Lin’s position occurred due to the reduction in force in December 2018, before Lin sustained her disability. Lin did not dispute that her name was selected for the initial reduction in force list in December 2018, but argued that evidence showed this proposed list was subject to further review, and Kaiser gradually reduced the list from 31 employees to the 17 who were ultimately laid off. Lin also argued that her termination was a result of her supervisor’s post-disability assessment of her and the email rating from January 29, 2019. She argued these ratings and evaluations were based on her disabilities and requests for accommodations. Lin’s supervisor never assigned her lighter tasks or discussed other possible accommodations to help her overcome her disability-related pace issues.

The trial court agreed with Kaiser and granted summary judgment in Kaiser’s favor. The trial court said the decision to terminate Lin’s employment was due to the ongoing reduction in force process and that all accommodations sought were granted.

The Court of Appeal disagreed. They found that Kaiser’s initial placement of Lin on the December 2018 reduction in force list was not discriminatory as it occurred before her disability arose. However, Kaiser’s decision to leave Lin on the reduction in force list and ultimately terminate her employment could have been based, at least in part, on Lin’s disability. The Court of Appeal considered Kaiser’s evaluation of Lin in January 2019 and noted that a reasonable jury could conclude that when Kaiser was collecting this information, it did so to determine whether to proceed with Lin’s termination.

The Court of Appeal found that a reasonable jury could find that Lin’s termination was substantially motivated by her disability because there was little evidence in the record that Lin was performing her job negatively prior to her disability. It was only after Lin’s disability that her supervisor judged her performance more harshly in comparison to her teammates.

The Court of Appeal reversed the judgment and remanded the case to the trial court.

Lin v. Kaiser Foundation Hospitals (2023) --- Cal. Ct. App. --[2023 WL 2202544].

Note:

Schools should remember that layoffs can still serve as the bases for employment claims including disability discrimination claims. While employers can use performance as a criterion to determine which employees to select for layoff, using performance as a criterion may be risky if the employer does not have adequate performance documentation. Employers should reconsider using performance as a layoff criterion unless the employer has accurate, thorough and contemporaneous documentation of performance issues and also conducted regular performance reviews.