An armored car company employee, who was subject to an internal investigation by his employer for missing cash and eventually terminated, failed to prove his termination was due to his physical disability or in retaliation for filing a workers' compensation claim, the California Court of Appeal ruled.  Arteaga v. Brink's, Inc., No. B190482 (Cal. Ct. App. May 28, 2008).  The court found that the plaintiff's alleged complaints of pain and stress-related symptoms were not a physical disability under the State's Fair Employment and Housing Act.  Further, although the employee was terminated shortly after filing workers compensation claims, the court held that the temporal proximity was insufficient to prove pretext where the employer had a legitimate, business reason for the termination.  Accordingly, the court affirmed summary judgment in favor of the employer.

The employee worked as a “messenger” for an armored car company.  Messengers supervise the armored vehicle and its crew and are responsible for all valuables and cash placed in the vehicle.  When servicing ATMs, messengers are responsible for removing residual cash from the ATMs, replenishing the ATMs, and returning residual cash and deposits to the employer's vault.  In 2003, the employee underwent a medical examination which revealed that he was in good health and the employee reported no health problems.

In 2004, the employee's supervisor learned of a cash shortage of $4,540 that occurred when the employee serviced a customer's ATM.  The employer investigated the matter.  While the investigation was ongoing, the employee complained of pain and numbness in his arms, fingers, shoulders, and feet and that he suffered from work-related stress.  The employee also claimed to have developed a stress-related rash.  The employee filed workers' compensation claims for his alleged injuries, and the employer's physician released him for full duty with no restrictions.  Based on its investigation, the employer found that there was a total of $7,668 in shortages from ATM machines that the employee serviced as a messenger.  Although the employer did not accuse the employee of theft, the money was the employee's responsibility.  Due to these shortages, the employer lost confidence in the employee' ability to perform his job and terminated his employment.  Thereafter, the employee sued the employer for alleged disability discrimination under FEHA and for workers' compensation retaliation.  The employer moved for summary adjudication which the trial court granted.  The employee appealed.

Addressing the employee's alleged disability discrimination claim, the court found that the employee did not have an actual disability because his alleged symptoms did not make the performance of his job duties difficult.  Indeed, during his employment, the employee never showed any signs of a medical problem.  The employee was in good health and did not mention his symptoms during a medical examination several months before the investigation.  His supervisors never saw the employee suffering from any medical condition, and the employer's physician cleared him for full duty after he filed his claims.  Further, the employee testified that his symptoms limited only his ability to play soccer, which is not a major life activity.  The employee first mentioned his alleged symptoms after learning he was under investigation for cash shortages.  Accordingly, the court concluded that the plaintiff could not establish a prima facie disability discrimination claim.

In addition, the court found that the employer offered a legitimate, nondiscriminatory reason for his discharge: the loss of confidence in him due to the cash shortages and that the employee failed to prove that the employer's reason for his discharge was pretextual.  Significantly, the court rejected the employee's argument that the close timing between the disclosure of his alleged disability and his termination suggested an unlawful basis for the employee's dismissal.  The court stated, “[T]emporal proximity alone is not sufficient to raise a triable issue as to pretext once the employer has offered evidence of a legitimate, nondiscriminatory reason for the termination.”

Addressing the workers' compensation retaliation claim, the court found that, although the employee established a prima facie retaliation case, the employer had a legitimate business reason for the termination.  The employee argued that the temporal proximity between the filing of his workers' compensation claims and his termination suggested that the firing was retaliatory.  As with the disability claim, the court rejected the employee's argument. 

The court also rejected the employee's argument that the employer terminated him to keep its workers' compensation costs low.  The employer's statistical evidence showed that 40 other employees filed workers' compensation claims, and none was discharged.  This fact demonstrated that the employer terminated the employee due to a loss of confidence, and not for filing a workers' compensation claim.  Accordingly, the court affirmed summary adjudication in favor of the employer on the workers' compensation retaliation claim.

This case reminds employers that the timing of events, such as the filing of a workers' compensation claim, need not preclude taking an adverse action against an employer if that decision is well-supported.  Here, the employer underwent a thorough investigation of the employee's alleged misconduct and offered a reasonable and legitimate reason for the termination.  Significantly, the employer did not attempt to prove that the employee stole any money and did not accuse him of theft.  Rather, the employer stated that it had lost confidence in his abilities to perform, which is much easier to prove.  In addition, the employee's subjective complaints of pain, stress and a rash, together with medical evidence that he was in good health, were insufficient to establish that the employee had a physical disability.