Here’s an interesting FEHA disability discrimination case in which the Ninth Circuit upheld the district court’s summary judgment dismissing the case. In this case there was no evidence that plaintiff’s disability was a substantial motivating reason for his termination.

Plaintiff was an on-call employee which means that his employer would call plaintiff when needed to work. Plaintiff would be called three times in a 15-minute period, and if plaintiff failed to answer or respond to the calls, then plaintiff was charged with being absent. Importantly, plaintiff chose to be an on-call employee, even though he had the choice to work a five-day-per-week regular schedule.

Plaintiff missed ten calls during a six-month period. During that time he was suspended twice and he was finally terminated. At one point before plaintiff’s dismissal, his supervisor advised that plaintiff provide his employer with a landline number or a pager number so he would not miss any more calls.

But plaintiff declined this wise advice because he was having an affair with a woman outside his marriage, and plaintiff apparently told his wife he was working on occasions when he was visiting his mistress. A call to his landline from his employer would blow plaintiff’s cover!

After his last absence, plaintiff decided to seek medical attention and his physician determined that plaintiff suffered from obstructive sleep apnea. Plaintiff informed his employer of this diagnosis, but after a hearing on the issue, plaintiff was terminated.

According to the Court’s opinion, after plaintiff was fired, his union appealed the termination and prevailed and plaintiff returned to work. So apparently, plaintiff was working when he filed his lawsuit.

Plaintiff—unwisely in my opinion—filed his lawsuit, which resulted in a published opinion from the Ninth Circuit which disclosed that plaintiff couldn’t show up to work sometimes and that he was having an affair, an affair which caused some of plaintiff’s absences.

Plaintiff couldn’t even present a prima facie case because he had no evidence that his sleep apnea was a substantial motivating reason for his employer’s decision to fire plaintiff because, after all, the disciplinary proceedings commenced before plaintiff’s sleep apnea diagnosis.

This is an example of a lawsuit that should never have been filed in the first place.

Alamillo v. BNSF Railway Company
2017 WL 3648514
August 25, 2017