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

Dr. John S. Kao was a tenured professor at USF who submitted a 485-page complaint (plus a 41-page addendum) to the university alleging race-based discrimination and harassment at the school. Kao was not satisfied with the university’s two-page response, which he said did not offer any remedies for the problems he perceived with the way the school recruited new faculty members. Soon, other professors became “terrified” of Kao’s behavior, which included sudden bouts of yelling and screaming, uncontrollable rage and references to his judo expertise. Kao hit one of his colleagues “forcefully on the shoulder,” charged at another in a hallway and began responding to various people at the university with a “wild cackling laugh.” In response, the university conducted an internal investigation and asked Kao to submit to a fitness-for-duty examination (“FFD”) to be conducted by an independent physician and to submit his medical records to the physician. When Kao refused, the university terminated him. Kao sued the university for, among other things, disability discrimination, invasion of privacy and defamation. The trial court granted a non-suit against Kao on the defamation claim, and a jury ruled against him on the remaining claims. The Court of Appeal affirmed, holding that the university was not required to engage in the interactive process before referring Kao for an FFD because it was Kao’s burden (not the employer’s) to initiate the interactive process and that there was a business necessity for an FFD in this case. The Court found “untenable” Kao’s claim that USF had violated the Unruh Civil Rights Act given the existence of substantial evidence of a legitimate concern that Kao was dangerous. The Court also affirmed dismissal of the claim that the university had violated the Confidentiality of Medical Information Act by requiring Kao to submit his medical records to the independent physician as well as the defamation claim because communications about Kao to the independent physician were qualifiedly privileged. Finally, the Court affirmed denial of Kao’s motion in limine to exclude evidence that he had failed to mitigate his damages by not seeking work outside a university setting. See also EEOC v. Peabody W. Coal Co., 768 F.3d 962 (9th Cir. 2014) (mining leases that require employer to give preference to “Navajo Indians” do not violate Title VII’s prohibition against national origin discrimination).