Talk of Medication Not Enough to Inform Employer that Worker Had Disability

By Joanne Deschenaux, J.D. August 16, 2017
Talk of Medication Not Enough to Inform Employer that Worker Had Disability

​One conversation between an employee and a manager, in which the worker expressed concerns that medication he was taking might be affecting his work, was not sufficient to put the employer on notice that the employee might have a mental disability, the California Court of Appeal ruled.

The employee, who suffered from depression, did not establish his claims of disability discrimination in violation of the California Fair Employment and Housing Act (FEHA), the court found, as there was ample evidence that his employer did not know about his condition when it terminated him for poor job performance.

In 1992, Thane Ybay started working at RSUI Group Inc. as a technical assistant in the excess casualty underwriting department. Initially, he received positive performance reviews and was promoted to the position of underwriting assistant and then to associate underwriter. At some point during 2003 or 2004, he began taking a prescription anti-anxiety drug on an "as needed" basis.

In late 2006 and early 2007, Ybay began having work performance problems. He was spending a great deal of time socializing at the office, which contributed to his inability to complete his work. In 2008, Ybay was reassigned at his supervisor's request. His problems continued and, in 2009, his new supervisor recommended that Ybay be fired due to his poor job performance. Instead, however, Ybay was demoted from associate underwriter to underwriting assistant.

His problems continued and, in August 2011, Ybay's manager placed him on a performance improvement plan. The next day, Ybay met with Kathy Aberson, the senior vice president of administration for RSUI.  He told Aberson that he wondered whether medication he was taking might be impacting his work and had decided to see a physician. Aberson supported the plan and provided him with the phone number for the employee assistance program, which could provide him with counseling.

[SHRM members-only toolkit: Employing Persons with Psychiatric Disabilities]

Ybay saw a psychiatrist, and, in mid-October 2011, he saw a psychologist, who diagnosed him with a moderate degree of major depressive disorder. Ybay did not tell anyone at RSUI what either doctor told him and did not provide anyone at RSUI with a doctor's note or assessment regarding any disability. When Ybay was at the office, he was always well-dressed, social and appeared to be happy.

RSUI terminated his employment on Nov. 18, 2011, because he was unable to complete his work in a timely manner and because he failed to perform his tasks as directed by his supervising underwriters. By the time of his termination, Ybay had worked for four different underwriters, each of whom said they could not work with him.

RSUI never offered Ybay a reasonable accommodation or engaged in an interactive process regarding a disability.

Ybay filed a lawsuit on Aug. 11, 2014, claiming that during his employment, he was diagnosed with mental disabilities including anxiety and depression, for which he was being medicated and treated by a physician. He asserted three causes of action under FEHA relating to his alleged disability: disparate treatment, failure to provide reasonable accommodation and failure to engage in an interactive process. The case was tried before a jury in February 2015, and the jury found in favor of RSUI. The jury found that Ybay had a mental disability that limited him in performing the essential functions of his job with RSUI. However, the jury also found that RSUI did not know he had a mental disability.

Ybay filed a motion for a new trial and a motion for judgment notwithstanding the verdict, arguing that the jury's verdict was not supported by the evidence. Both motions were denied and he appealed.

Appellate Court Finds Substantial Evidence to Support Verdict

To prevail on each of his three claims, Ybay was required to prove RSUI knew he had a disability, the appellate court first said.

The court noted that every person who testified at trial, including Ybay, stated he never disclosed to anyone at RSUI that he had a mental disability. He also conceded he never requested any accommodation during his employment with RSUI. And although Ybay saw a psychiatrist and a psychologist shortly before RSUI terminated his employment, he never shared the results of his medical consultations with anyone at RSUI.

Ybay pointed to the meeting with Aberson in August 2011 as evidence that Aberson knew he had a mental disability. But, the court said, there was substantial evidence to support the jury's verdict.

To establish knowledge on the part of the employer, an employee may rely on circumstantial evidence, the court said. However, "knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the FEHA," the court concluded.

Ybay v. Rsui Group, Calif. Ct. App. No. BC486287 (Aug. 2, 2017).

Professional Pointer: Under FEHA regulations, employers must initiate an "interactive process" when an employee requests a reasonable accommodation or when the employer becomes aware of the possible need for an accommodation. This awareness might come through a third party or by observation.

Joanne Deschenaux, J.D., is a freelance writer based in Annapolis, Md.


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