Ackerman v. Western Elec. Co., Inc.

• Citation: 860 F.2d 1514
• Decision Date: 08 November 1988
• Docket Number: Nos. 86-2721,86-2769,86-2768 and 86-15079,87-1533,s. 86-2721
• Parties: 129 L.R.R.M. (BNA) 2929, 56 Fair Empl.Prac.Cas. 1806, 48 Empl. Prac. Dec. P 38,427, 57 USLW 2375, 110 Lab.Cas. P 10,858, 1 A.D. Cases 1389 Debra ACKERMAN, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INC., a corporation, Defendant-Appellee. Debra ACKERMAN, Plaintiff-Appellee, v. WESTERN ELECTRIC COMPANY, INC., a corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1514

860 F.2d 1514

129 L.R.R.M. (BNA) 2929, 56 Fair

Empl.Prac.Cas. 1806,

48 Empl. Prac. Dec. P 38,427, 57 USLW 2375,

110 Lab.Cas. P 10,858, 1 A.D. Cases 1389

Debra ACKERMAN, Plaintiff-Appellant, v. WESTERN ELECTRIC COMPANY, INC., a corporation, Defendant-Appellee.

Debra ACKERMAN, Plaintiff-Appellee, v. WESTERN ELECTRIC COMPANY, INC., a corporation, Defendant-Appellant.

Nos. 86-2721, 86-2769, 87-1533, 86-2768 and 86-15079.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 17, 1987.

Decided Nov. 8, 1988.

Madeleine Tress, Law Offices of Madeleine Tress, San Francisco, Cal., Guy T. Saperstein, Mari Mayeda, Farnsworth, Saperstein & Seligman, Oakland, Cal., for plaintiff-appellant-cross-appellee.

Michael H. Salinsky, Kevin M. Fong, William G. Alberti, Sabrina A. McCarthy, San Francisco, Cal., for defendant-appellee-cross-appellant.

Joan M. Graff, Robert Barnes, John M. True, The Employment Law Center of Legal Aid Soc. of San Francisco, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court for the Northern District of California.

Before TANG, CANBY and BRUNETTI, Circuit Judges.

CANBY, Circuit Judge:

INTRODUCTION

Plaintiff Debra L. Ackerman appeals from a judgment entered in her favor on a claim of handicap discrimination, under the California Fair Employment and Housing Act ("the Act" or "FEHA"). Cal.Gov.Code Sec. 12940. She raises various issues relating to the award of attorneys' fees, the denial of punitive damages, and the denial of prejudgment interest. ¹ Defendant Western Electric Company Inc., now AT & T Technologies Inc., ("the Company"), cross-appeals the summary judgment for plaintiff and the denial of summary judgment in its favor. In addition to its arguments on the state of the evidence, the Company claims that Ackerman's state law claim is preempted by federal labor law.

Ackerman filed the action in state court and the Company removed it to federal court. The parties waived jury trial. Following lengthy proceedings and extensive briefing, the district court dismissed all claims against the Company except the one for handicap discrimination under California law. The court granted summary judgment for plaintiff on that claim. We affirm the judgment of the district court, 643 F.Supp. 836, in all respects.

DISCUSSION

The Company installs, modifies and removes office telecommunications equipment. Debra Ackerman was hired by the Company as an installer in May 1978. In June 1981, she contracted a bronchial infection, which aggravated her preexisting asthmatic condition, and she went on disability leave. On April 9, 1982, the Company advised her that it had learned that she was unable to return to work and that she would therefore be discharged upon expiration of her disability benefits. On April 12, Ackerman returned to work with a note from her treating physician releasing her for work with the restriction "to stay away from dust, heavy exercise." A Company physician saw her and returned her to work with similar restrictions. On April 13, Ackerman and her union steward met with her supervisor, who advised them that the Company would not put her back to work as an installer, apparently because the Company Benefits Committee had determined that she was unable to return to sustained industrial work as a result of her asthma. She continued to receive disability benefits until June 15, 1982, at which time she was terminated for disability.

Preemption

The Company first raised the preemption issue in a motion to stay entry of summary judgment. Ordinarily, an issue raised so late in the proceedings would be waived for purposes of appeal, but the rule of waiver is a discretionary one. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). The issue has been thoroughly briefed and argued here, and Ackerman has not objected to our consideration of it. Because the issue is one of law and there is no deficiency in the record relating to it, we exercise our discretion to entertain the question. See In re Howell, 731 F.2d 624, 627 (9th Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 330, 83 L.Ed.2d 266 (1984).

The Company argues that Ackerman's state-law claim is preempted by section 301 of the Labor Management Relations Act. 29 U.S.C. Sec. 185(a)(1947). The union's contract with the Company has a general clause which broadly prohibits discrimination on the basis of race, color, religion, sex, age, ... or because of handicap. This general prohibition, the Company argues, means that Ackerman's state law claim, is "inextricably intertwined" with the grievance and arbitration procedure of the collective bargaining agreement and so should have been dismissed as preempted. We disagree.

The Supreme Court recently stated that "the mere fact that a broad contractual protection against discriminatory ... discharge may provide a remedy for conduct that coincidentally violates state law does not make the existence or the contours of the state law violation dependent upon the terms of the private contract." Lingle v. Norge Division of Magic Chef, Inc., --- U.S. ----, 108 S.Ct. 1877, 1885, 100 L.Ed.2d 410 (1988). If the state law claim can be resolved without interpreting the agreement, the claim is independent of the agreement for Sec. 301 pre-emption purposes. Id. 108 S.Ct. at 1884-85. Thus in Lingle, a state law claim for "retaliatory discharge" was held not to be preempted even though the same set of facts led to arbitration under the collective bargaining agreement. Id. at 1885. Of critical importance in Lingle was the fact that the state law factual inquiry did not turn on the meaning of any provision of the collective bargaining agreement. Pursuit of the state law claim consequently did not undermine the goal of uniform federal standards for federal labor-law adjudications.

Lingle controls this case. California's statute confers upon employees ² certain rights not to be discriminated against because of physical handicap or medical condition. Cal.Gov.Code Sec. 12940. That right is defined and enforced under state law without reference to the terms of any collective bargaining agreement. Ackerman's state-law claim is consequently independent of the agreement. That she might also have separate remedies under the bargaining agreement makes no difference.

[E]ven if dispute resolution pursuant to a collective-bargaining agreement, on the one hand, and state law, on the other, would require addressing precisely the same set of facts, as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is "independent" of the agreement for Sec. 301 pre-emption purposes.

Lingle, 108 S.Ct. at 1883 (footnote omitted). See Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987) (complaint for wrongful discharge that does not require interpretation of collective bargaining agreement not preempted by Sec. 301).

Thus, we have recently held that a claim brought under Oregon's handicap discrimination law is not preempted by Sec. 301 because it does not require interpretation of a collective bargaining agreement. Miller v. AT & T Network Systems, 850 F.2d 543 (9th Cir.1988). The Oregon statute involved

in that case, Ore.Rev.Stat. Sec. 659.425, is indistinguishable in all relevant respects from the California statute upon which Ackerman relies. In light of Miller as well as Lingle, then, it is clear that Ackerman's claim is not preempted.

Denial of Summary Judgment for the Company

The Company contends that the district court erred in denying its motion for summary judgment in September 1985. The Company points out that the district court stated that Ackerman had not established an essential part of her prima facie case--that she could, with reasonable accommodation if necessary, perform the "essential functions" of the installer's job. The court stated that there had been no sufficient showing as to which of the functions of an installer's job were the essential ones, and that there had similarly been an inadequate showing as to what accommodation might be required. The Company argues that Ackerman bore the burden of proof on these issues, and that the district court accordingly should have rendered judgment for the Company under the rule of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Celotex held that Rule 56(c) requires the entry of summary judgment against a party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2553.

In holding that Ackerman was required to show that she could perform the essential functions of the installer's job, however, the district court relied on California regulations then in effect. They provided that a prima facie case of handicap discrimination was established by plaintiff's showing that she was a "qualified handicapped individual" who had been denied her position because of her handicap. Cal.Admin.Code Title 2, Sec. 7293.7. A "qualified handicapped individual" was defined as a handicapped individual "who, with reasonable accommodation, can perform the essential functions of the job." Id. at 7293.6(j).

These regulations did appear to place upon Ackerman the burden of showing that she could, with reasonable accommodation, perform the essential functions of the installer's job. That burden, however, seemed to be inconsistent with the provision of the statute, which first prohibits discrimination because of handicap and then lists what have been treated as affirmative defenses: that an "employee, because of his or her physical handicap, is unable to perform his or her duties, or cannot perform those duties in a manner which would not endanger his or her health and safety or the health and safety of others." Cal.Gov.Code Sec. 12940(a)(1); see DFEH v. City of...