University Did Not Violate the FEHA By Terminating Professor After He Failed to Attend Fitness-for-Duty Examination

Category: Client Update
Date: Oct 20, 2014 01:42 PM

John Kao began teaching mathematics at the University of San Francisco (USF) in 1991 and became a tenured professor in 1997.  In  2006, Kao submitted a 485-page complaint to USF regarding the lack of diversity among faculty in the math and computer science department.  Kao also alleged race-based discrimination and harassment.  Kao lodged a 41-page addendum to the complaint the following year.

In 2008, Kao met with mathematics professor Paul Zeitz and then Associate Dean of Sciences Brandon Brown about USF's failure to advertise for new faculty in professional journals.  Zeitz described the meeting as "the most upsetting thing that's ever happened to me at my job."  Zeitz said that Kao became unable to control his emotions and started yelling and screaming.  Zeitz stated he was "terrified" of Kao during the meeting and noted Kao's "sudden change to complete irrational, uncontrollable rage."   

Brown testified that Kao confronted him about the mathematics job search.  Kao was incredibly agitated and enraged, his fists were clenched, and he shouted at Brown.  Brown testified that he had never been in a situation like that before, and was frightened.

Three other mathematics professors testified that at a 2008 faculty search committee meeting, Kao threw papers across the table, was screaming and shaking with rage, made nonsensical, uncontrolled rants, and was intimidating.  Zeitz and two mathematics professors testified that Kao became physically confrontational with them as the spring semester progressed.  Kao forcefully bumped into two of them, and charged toward another in a school corridor, only to turn aside at the last minute.  Multiple members of the faculty testified that they were afraid of Kao and worried about their physical safety when on campus. 

USF began investigating the situation.  Assistant Vice-President Peugh-Wade interviewed faculty members and Peugh-Wade, along with other colleagues, met with forensic psychiatrist James Missett, an expert on threat assessment and fitness-for-duty evaluations.  Peugh-Wade provided Missett summaries of her faculty interviews, and Associate Dean Brown expressed his concerns about Kao.  Missett told the group that USF had an obligation to provide a safe working environment and to take action with respect to Kao.  He also said that the only way to assess whether Kao could safely perform his job was to have an independent medical exam by an independent physician. 

Peugh-Wade selected Dr. Norman Reynolds to perform a fitness for duty examination of Kao.  Peugh-Wade then met with Kao and his attorney and provided a letter which contained specific descriptions of Kao's behavior and its impact on others.  Kao's attorney requested detailed information regarding the reports made by faculty members, but Peugh-Wade denied the request. 

Approximately one week after the meeting, Peugh-Wade placed Kao on leave of absence and prohibited him from coming to campus.  Peugh-Wade also directed Kao to attend a fitness for duty evaluation.  Kao's counsel stated that Kao would not attend the evaluation, argued that USF had failed to advise Kao of the specific incidents and questioned why USF allowed Kao to continue working for several months without advising him of the incidents.  Kao's attorney also claimed that the fitness for duty examination was in retaliation for Kao's grievances alleging discrimination.  Peugh-Wade and Dean Brown both responded by letter, ordering Kao to attend a fitness for duty evaluation and warning that failure to comply would result in disciplinary action. 

USF's Director of Employee and Labor Relations, David Philpott, set up a meeting with Kao and his counsel.  Philpott hoped to persuade Kao to attend the fitness for duty evaluation.  At the meeting, Philpott observed Kao clenching his fists, rapidly blinking his eyes, and exhibiting other behavior that he testified could make someone feel uncomfortable.  After the meeting, Philpott notified Kao by letter that if he did not submit to a fitness for duty evaluation, he would be terminated.  Philpott also stated that because Kao's attorney disputed whether USF could lawfully require a fitness for duty evaluation, USF was willing to arbitrate the dispute under the collective bargaining agreement, and would pay the arbitrator's costs.  Kao rejected the offer.  USF terminated Kao's employment for failing to cooperate with an independent medical evaluation.

Kao sued USF for violations of the Fair Employment and Housing Act (FEHA), the Unruh Civil Rights Act, the Confidentiality of Medical information Act, and the California Constitution's right to privacy, as well as defamation.  The court granted USF a nonsuit against Kao on the defamation claim, and a jury found against Kao on his remaining claims.  Kao appealed, and the Court of Appeal affirmed the judgment. 

Kao argued that USF was required to engage in the interactive process before requiring him to attend a fitness for duty evaluation.  The FEHA requires that employers reasonably accommodate an employee's disability and engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations.  Unless a disability is obvious, the employee bears the burden of initiating the interactive process.  Kao never admitted or acknowledged any disability, he did not present any documentation confirming that he had a disability, and he did not seek a reasonable accommodation for a disability.  Therefore, the interactive process was not necessary, and USF did not improperly fail to participate in that process. 

Kao also argued that USF did not present substantial evidence that the fitness for duty evaluation was job-related and consistent with business necessity.  The FEHA allows an employer to require a medical or psychological examination of an employee if it can show that the examination is "job-related and consistent with business necessity."  A fitness for duty evaluation is "job-related" if it is tailored to assess the employee's ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or others due to disability.  A fitness for duty evaluation is a "business necessity" if the need for the medical examination is vital to the business.  In this case, multiple people reported multiple instances of Kao's threatening behavior, and USF's decision to require the evaluation was based on expert advice.  Accordingly, USF presented sufficient evidence that a fitness for duty evaluation was appropriate under the circumstances. 

Kao argued that USF violated the Unruh Civil Rights Act's prohibition against disability discrimination, claiming that USF banned him from campus based on its perception that he suffered from a mental disability.  The Court of Appeal rejected this argument, stating that the evidence demonstrated that USF did not know what was causing Kao's behavior, not that it had determined his behavior resulted from a disability.  Therefore, the evidence did not establish that USF had a discriminatory motive for keeping Kao away from campus. 

Kao argued that USF violated the Confidentiality of Medical information Act (CMIA) by terminating his employment for refusing to release medical information to the doctor.  The CMIA provides that an employee may not be discriminated against in terms or conditions of employment due to the employee's refusal to sign an authorization to release medical information.  The CMIA also states, however, that an employer is not prohibited from taking such action as is necessary in the absence of medical information due to an employee's refusal to sign an authorization under this part.  The jury was instructed that if Kao proved that his refusal to authorize release of confidential medical information was the motivating reason for his termination, USF could still avoid liability by showing that its decision to terminate Kao was necessary because Kao refused to undergo the fitness for duty evaluation.  The Court of Appeal held that the same evidence that supported a finding that the evaluation was job-related and consistent with business necessity also supported a finding that it was necessary for USF to terminate Kao because of his refusal to release the medical information required for the evaluation.  

Kao asserted that the court erred by granting a nonsuit as to his defamation claims.  The claim was based on the fact that Peugh-Wade sent the doctor who was retained to perform Kao's fitness for duty evaluation a copy of the letter which listed the frightening behavior people attributed to Kao.  The Court of Appeal affirmed the grant of nonsuit.  There is a common interest privilege that protects a communication made without malice to a person interested therein by a person who is also interested.  USF, Peugh-Wade, and the doctor had a common interest in the efficacy of Kao's evaluation, and the doctor needed to know the concerns that prompted it.  There is no reasonable probability that a jury would have found the reports of Kao's behavior to be malicious. 

For the foregoing reasons, the Court of Appeal affirmed the judgment in favor of USF.   


Both the FEHA and the Americans with Disabilities Act (ADA) allow an employer to require a fitness for duty evaluation of an employee if the evaluation is job-related and consistent with business necessity.  Agencies should ensure that fitness for duty examinations are based upon facts to support the need for a fitness for duty examination.  This case also demonstrates that if an agency has a sufficient basis upon which to require a fitness for duty examination, it may compel an employee to submit to an examination before allowing the employee to return to the workplace.  This case is based upon a specific set of facts and each situation is factually distinct.  Issues relating to fitness for duty examinations can encompass larger issues relating to laws relating to disability discrimination, interactive process meetings, workers' compensation and others.  Accordingly, agencies are urged to consult with legal counsel with regards to questions concerning fitness for duty examinations.

Kao v. University of San Francisco (2014) 229 Cal.App.4th 437.

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