Judge: Blaine K. Bowman, Case: 37-2022-00033329-CU-WT-NC, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 18, 2024

01/19/2024  10:00:00 AM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited  Wrongful Termination Summary Judgment / Summary Adjudication (Civil) 37-2022-00033329-CU-WT-NC COURTNEY VS LUMIRADX, INC. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/01/2023

The Motion for Summary Judgment/Adjudication brought by defendant Lumiradx Inc. (the Employer) is DENIED.

Objections to Evidence The Objections to Evidence brought by the Employer are disposed as follows: Objection No. 1: Overruled Objection No. 2: Overruled Objection No. 3: Overruled Objection No. 4: Overruled Objection No. 5: Overruled Objection No. 6: Overruled Objection No. 7: Overruled Objection No. 8: Overruled Objection No. 9: Overruled Merits of Motion This is an employment discrimination case predicated on alleged medical disability. The specific medical disability in question is cognitive and deals with early memory defects. The employee-plaintiff, Jennifer Courtney (Plaintiff), worked in a biosafety laboratory, where it is undisputed that she worked closely with biohazardous materials in a 'high risk' setting. It appears that as a result of her cognitive disabilities, Plaintiff requested additional time to complete tasks. However, as that request for additional time was somewhat open-ended, the Employer sought more specifics from Plaintiff's doctor – for the stated reason that there were some performance issues being seen in Plaintiff's work that raised a concern about safety in the laboratory. After significant back-and-forth in the interactive process, with the Employer making some assertions in its proposed communication to Plaintiff's doctor that Plaintiff took issue with and that, arguably, misstated the facts or presumed facts that Plaintiff wished to challenge as untrue, Plaintiff's employment was eventually terminated for failing to obtain the further clarification from her doctor as requested by her Employer.

Plaintiff is now suing for: (1) disability discrimination, retaliation, and wrongful termination, (2) failure to accommodate a disability and engage in the interactive process, and (3) unfair business practices.

The Employer recites the well-known 'shifting burden' analysis under the seminal case of McDonnell Douglas Corp v. Green (1973) 411 U.S. 792 and as confirmed in California law under Guz v. Bechtel Calendar No.: Event ID:  TENTATIVE RULINGS

3035005 CASE NUMBER: CASE TITLE:  COURTNEY VS LUMIRADX, INC.

[IMAGED]  37-2022-00033329-CU-WT-NC National, Inc. (2000) 24 Cal.4th 254. On the evidence provided here, Plaintiff has met her initial burden under McDonnell Douglas of setting forth a prima facie case of disability discrimination. She has established that there is, at the very least, documented medical evidence of her cognitive and memory issues and there is a factual narrative or string of events that connects that medical disability to her ultimate termination. In so doing, Plaintiff's evidence shifts the burden under McDonnell Douglas to the Employer to establish a legitimate, non-discriminatory reason for the termination. It appears to be undisputed that Plaintiff worked in a lab with high-risk biohazard materials. As such, the Employer has established evidence that there are certain risks of the position for which safety precautions are required. The Employer has put forth that Plaintiff's underperformance as a result of her cognitive disabilities may have increased the safety risk presented in the lab environment. Such concerns meet the Employer's obligation under McDonnell Douglas of setting forth evidence demonstrating the existence of legitimate, non-discriminatory reasons – with one exception. The evidence provided does not quite demonstrate why the accommodation requested by Plaintiff (which was 'additional time to take detailed notes which would allow her to remain organized and reduce issues with memory recall') was insufficient to alleviate these risks. In that sense, the Employer may not have fully met its burden under McDonnell Douglas in that it has presented a reason that would appear legitimate and non-discriminatory, but that reason does not connect to why Plaintiff's employment was eventually terminated rather than Plaintiff being accommodated so she could remain working with accommodations for her medical disability.

Nonetheless, even if that issue did not exist, Plaintiff has put forth evidence, and a fact-finder could potentially weigh the narrative of what occurred, to determine that the Employer's motivation for terminating Plaintiff was not purely a concern about safety in the laboratory, but, rather was about not wanting to accommodate Plaintiff's disability as doing so might impact work speed or workload of what could be assigned to Plaintiff.

The Court is mindful that there is a fairly direct connection in this case between the disability being claimed (cognitive impairment) and the accommodation requested (additional time to take notes), on the one hand, and ability to complete a given workload, on the other. Said another way, Plaintiff's specific disability seems to result in her needing more time to complete the same tasks that another employee could complete within an expected time frame. There seems, factually, to be some tension between the fact that in order to maintain lab safety, Plaintiff needed additional time to complete each task, which, in turn, means Plaintiff is a less productive employee. Accommodations in the workplace come in all shapes and sizes. Some have zero impact on productivity, some have a de minimis impact on productivity, and others have a major impact on productivity. The law, however, only requires reasonable accommodations. Precise determination of where the line is in terms of what is reasonable and what is not is left to a factfinder. On the facts before the Court, the Court cannot tell: (1) whether the accommodation of additional time was sufficient to shore-up any safety risks that may have resulted from Plaintiff's underperformance on Standard Operating Protocols and (2) if such accommodation could shore-up the risks, whether the amount of 'extra time' that was needed was 'reasonable' in context of the workplace. Furthermore, in terms of pretext, the Court cannot determine on these facts (at least not without the factfinding power of a jury or a trial) whether the Employer's stated reasons were pretextual (i.e. if the amount of 'extra time' meant too little work was getting done such that it was impacting the Employer's business bottom line) or if it was an earnest and good faith concern for safety in the lab.

It appears to the Court that this case could come out either way. A factfinder could conclude that Plaintiff was underperforming in her duties and that her stated disability having to do with cognitive impairment was, in a way, her own 'pretext' to cover up her own inability to do the job in a safe and timely manner.

On the other hand, lab safety in a biohazard environment is a real and legitimate concern, and, if there was no pretext to the invoking of that concern, a factfinder could well determine that the Employer in this case not only did not discriminate, but, in fact, did the wise and practical thing to maintain safety for all

others in the laboratory – and for those outside the laboratory who, given the dangerous nature of biohazard material, might be put at risk as well.

The case cannot be resolved within the strictures of a motion for summary judgment, where the Court Calendar No.: Event ID:  TENTATIVE RULINGS

3035005 CASE NUMBER: CASE TITLE:  COURTNEY VS LUMIRADX, INC.

[IMAGED]  37-2022-00033329-CU-WT-NC cannot weigh evidence.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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