Fitness for DutyIn Kao v. University of San Francisco, ___ Cal.App.4th ___  (September 3, 2014), the California Court of Appeal (First Appellate District, Division Three) affirmed the judgment of the San Francisco County Superior Court (Judge Douglass) in favor of defendant after a jury trial of plaintiff’s claim of disability discrimination.

Plaintiff was a tenured mathematics professor at defendant university who, in 2006 and 2007, complained to defendant about race-based discrimination and harassment.  Subsequently, plaintiff began behaving erratically and in a manner that threatened and intimidated his colleagues. Defendant began investigating plaintiff’s behavior and, after consulting with a clinical and forensic psychologist and forensic psychiatrist, determined that plaintiff should be placed on a leave of absence and undergo a fitness-for-duty evaluation. Yet, plaintiff refused to submit to the evaluation, even after defendant advised him that his employment would be terminated if he did so. After plaintiff was terminated, he sued defendant for, among other things, discrimination in violation of California’s Fair Employment and Housing Act.  At trial, the jury found in favor of defendant on all of plaintiff’s claims.  Plaintiff appealed, arguing that defendant never engaged in the interactive process before it required him to undergo the evaluation.

The appellate court disagreed, however, finding that plaintiff never presented any evidence that he had informed defendant of his disability. In fact, plaintiff had steadfastly refused to admit that he had a disability during his employment. Therefore, “[n]o interactive process was necessary, and there is no substance to [plaintiff]’s argument that [defendant] improperly failed to participate in that process.” Additionally, the court found that defendant presented substantial evidence that the evaluation it required was “job related and consistent with business necessity,” because the evaluation “was necessary to determine whether he posed a danger to others in the workplace.”