Discrimination Case Against UC Regents is Heading Back to Court

Karen Natividad

Opinion By Justice Aaron
Daily Appellate Report; June 22, 2016

In February 2010, Deborah Moore became the Director of Marketing at UCSD's Marketing and Communications Dept.  In June, Kimberly Kennedy became the Executive Director of the Department.  In early September, Moore was diagnosed with a heart condition and had to temporarily wear a "LifeVest."  Kennedy allegedly became "hostile" and "snippy" and began eliminating Moore's "main responsibilities" after becoming aware of Moore's medical condition.  This led Moore to believe that Kennedy was trying to get rid of her, which Kennedy eventually did on February 5, 2011, citing "lack of work" and budgetary constraints.  Moore sued the Regents of the University of California alleging disability and retaliation claims under, among other things, the Fair Employment and Housing Act (FEHA). The trial court ultimately granted summary judgment in favor of the defense.

Reversed in part and remanded. Under the three stage burden-shifting test for FEHA discrimination claims in McDonnell Douglas Corp. v. Green, the plaintiff has the initial burden to establish a prima facie case of discrimination.  If successful, the burden shifts to the employer to demonstrate that its  action was taken for a legitimate, non-discriminatory reason.  If sustained, the plaintiff may demonstrate that the proferred reason is false or pretextual.  Here, only the last step was in dispute. The trial court rejected Moore's proffer.  However, the timing of Moore's firing despite her "rapid ascension in the Department," Kennedy's belief that Moore was not healthy enough for the job, and Kennedy's failure to follow policies or procedures provided sufficient evidence from which the trier of fact could infer that the proferred reasons for Moore's termination may have been untrue or was a pretext for disability discrimination.  Hence, summary judgment on Moore's FEHA discrimination claim was improper.  The court likewise overturned the judgment as to her other claims with the exception of the FEHA retaliation claim.

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