Moore was promoted to head of the marketing department for UCSD when she suffered a mild form of heart attack and her doctors ordered her to wear a heart vest to work for several weeks.  Although it turned out, she was not disabled by her medical condition, her boss arguably thought she was.  Moore was terminated shortly thereafter when her position was eliminated in a restructuring of the department.  This decision holds that Moore produced sufficient evidence to satisfy the first and third steps of the McDonnell Douglas burden-shifting test, raising questions of fact requiring trial of her claim that UCSD terminated her for the impermissible reason that it (incorrectly) perceived she was disabled by her medical condition.  The timing of the restructuring allowed an inference of discrimination as it closely followed Moore’s request for time off for a heart operation.  Also, Moore’s boss didn’t follow UCSD policy regarding layoffs during a restructuring which gave preference to more senior employees, laying off the more junior ones first and its policy regarding rehiring those laid off when new positions opened up.  Moore also raised triable issues of fact as to her failure to accommodate claims.  Despite the fact she had no actual disability, UCSD had a statutory duty to accommodate what it perceived to be her disability.  UCSD therefore should have engaged in an interactive process with Moore when she asked for leave to have heart surgery; medical leave being one form of accommodation of a medical condition or disability.  Triable issues were also raised with respect to Moore’s claims for interference with her request for medical leave for the heart operation in violation of California’s Family and Medical Leave Act.

California Court of Appeal, Fourth District, Division 1 (Aaron, J.); June 2, 2016 (published June 20, 2016); 2016 WL 3434186