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Horvitz & Levy persuaded the Court of Appeal to affirm nonsuit in a disability discrimination action on the grounds that plaintiff failed to exhaust her administrative remedies and there was no substantial evidence to support her claims.
The Regents terminated plaintiff’s employment during her initial probationary period because of attendance and performance issues. Plaintiff sued The Regents for disability discrimination, retaliation, failure to accommodate, failure to engage in an interactive process, and failure to prevent discrimination and retaliation in violation of the Fair Employment and Housing Act (FEHA). The trial court granted The Regents’ motion for nonsuit because plaintiff failed to submit some aspects of her claims to the Department of Fair Employment and Housing (DFEH) before filing her civil suit, and also because there was no substantial evidence to support any of her claims. Plaintiff appealed, and The Regents retained Horvitz & Levy to defend the judgment.
Horvitz & Levy convinced the Court of Appeal to affirm the grant of nonsuit. The court agreed with Horvitz & Levy that the trial court had no jurisdiction over plaintiff’s FEHA claims to the extent they were based on her purported migraines and anxiety because those theories were not mentioned in her DFEH complaint, even though other disability discrimination theories were mentioned in her DFEH complaint. The court then held there was no substantial evidence to support plaintiff’s claims because the relevant decisionmakers had already decided to terminate plaintiff’s employment before learning that plaintiff had a disability, and The Regents had provided the accommodations appellant requested before her termination.
