Facts

Plaintiff Debbie Bumgarner, who suffers from Meniere's disease and uses a wheelchair, applied but ultimately was rejected for a $13 per hour temporary customer service position at defendant WellPoint Inc.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that she was denied employment and selection for a training program because of her disability; and that WellPoint, Inc. made impermissible non-job related inquiries during her job interview.

Plaintiff claimed that she could establish a prima facie case of disability discrimination; that WellPoint failed to articulate a legitimate, non-discriminatory business reason for its decision; and that she had sufficient evidence of pretext to defeat summary judgment.

Plaintiff had previously worked as a temporary customer service representative for WellPoint in 2003; she had missed eight days of work due to illness and had to resign from her position a week before the temporary position was to end, because she was bedridden. Plaintiff has sought treatment and been able to get her disease under control.

Plaintiff interviewed for the WellPoint position in August 2007; she attended the interview in a wheelchair. At no time during the interview did plaintiff state that she needed any time off during the mandatory three week training period, and notes from the interview do not contain any comments that the plaintiff told the interviewers that she would need time off during the training period. Plaintiff was accepted for the training program and was told to report the following Tuesday to the WellPoint facility.

After plaintiff arrived to start work, she was informed that WellPoint had decided not to hire her, because she was going to miss time for medical appointments, and they did not want to waste time and money training her. A WellPoint manager testified that plaintiff's leave because of illness in 2003 would not have been an appropriate attendance concern in her interview of 2007. WellPoint's business records show that it did not select plaintiff because of attendance concerns.

DEFENDANTS' CONTENTIONS:
WellPoint Inc. maintained that it had legitimate non-discriminatory business reason for not selecting plaintiff for a temporary position as she was absent eight days in a previous five-month temporary assignment at the company and ultimately quit before the end of the assignment. Given that record, WellPoint was concerned that plaintiff might miss time during the mandatory two to three-week training for the position, putting her too far behind to begin work when needed.

WellPoint also maintained that plaintiff's evidence of pretext was based on speculation, hearsay, or other inadmissible evidence. It argued that plaintiff did not seek a training position, but actual temporary employment. Finally, it noted that plaintiff conceded that no impermissible inquiries were made during her job interview.

Settlement Discussions

WellPoint, Inc. made plaintiff an unconditional offer of a full time customer service position with benefits, as attendance at training for that position was not as critical. Plaintiff rejected the offer, demanding $120,000. In its summary judgment ruling, the court indicated that plaintiff's rejection of that offer "speaks volumes."

Result

Court granted summary judgment for and awarded costs to defendant WellPoint, Inc. Plaintiff voluntarily dismissed defendant Kelly Services, Inc. on Feb. 1, 2010.

Other Information

The court granted WellPoint's summary judgment motion in full. It concluded that WellPoint met its burden of articulating a legitimate, non-discriminatory reason for not offering plaintiff the position and that plaintiff failed to rebut WellPoint's position that her prior poor attendance was merely a pretext for discrimination. The court also held that plaintiff failed to offer any evidence that the decision maker had any knowledge of plaintiff's disability. The court held that there was no evidence that the position in question was a training program within the meaning of Government Code Section 12940 or that any WellPoint interviewer made impermissible inquiries during plaintiff's job interview. Plaintiff filed a Notice of Appeal on Sept. 27, 2010. The parties reached confidential settlement on Jan. 24, 2011. FILING DATE: Dec. 30, 2008.