City of Moorpark v. Superior Court

• Decision Date: 17 August 1998
• Docket Number: No. S057121,S057121
• Citation: 77 Cal.Rptr.2d 445,959 P.2d 752,18 Cal.4th 1143
• Parties: , 959 P.2d 752, 63 Cal. Comp. Cases 944, 8 A.D. Cases 577, 13 NDLR P 96, 98 Cal. Daily Op. Serv. 6376, 98 Daily Journal D.A.R. 8839 CITY OF MOORPARK et al., Petitioners, v. The SUPERIOR COURT of Ventura County, Respondent; Theresa L. Dillon, Real Party in Interest
• Court: California Supreme Court

Page 445

77 Cal.Rptr.2d 445

18 Cal.4th 1143, 959 P.2d 752, 63 Cal. Comp. Cases 944,

8 A.D. Cases 577, 13 NDLR P 96,

98 Cal. Daily Op. Serv. 6376,

98 Daily Journal D.A.R. 8839

CITY OF MOORPARK et al., Petitioners, v. The SUPERIOR COURT of Ventura County, Respondent;

Theresa L. Dillon, Real Party in Interest.

No. S057121.

Supreme Court of California

Aug. 17, 1998.

Cheryl J. Kane, City Attorney, Burke, Williams & Sorensen, Harold A. Bridges and Heather C. Beatty, Los Angeles, for Petitioners.

Fred L. Main, Sacramento, Dale R. Kuykendall, Modesto, O'Melveny & Myers, Stephen P. Pepe, Steven M. Cooper, Kevin M. Wernick, Los Angeles, Armstrong & North, San Jose, and William J. Armstrong, San Francisco, as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Maury Mills, Jr., Ventura, for Real Party in Interest.

Brad Seligman, Elaine Feingold, Berkeley, Christopher Ho, San Francisco, Joseph Posner, Encino, Joseph R. Grodin, San Francisco, Paul R. Gant, Sacramento, William A. Herreras, Grover Beach, Quackenbush & Quackenbush and William C. Quackenbush, San Mateo, as Amici Curiae on behalf of Real Party in Interest.

Steven C. Owyang and Ann M. Noel, San Francisco, as Amici Curiae.

CHIN, Justice.

Labor Code section 132a (section 132a) prohibits employers from discriminating against employees "who are injured in the course and scope of their employment." When an injury of this kind results in disability, we have held that section 132a prohibits discrimination based on the disability. (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 667, 150 Cal.Rptr. 250, 586 P.2d 564 (Judson Steel ).) In addition, the California Fair Employment and Housing Act (Gov.Code, § 12900 et seq. (FEHA)) prohibits various types of employment discrimination, including discrimination based on a disability. (Gov.Code, § 12921.) Finally, we have recognized a common law protection against certain types of discriminatory or retaliatory termination of employment. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (Stevenson ) [age discrimination]; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1097, 4 Cal.Rptr.2d 874, 824 P.2d 680 (Gantt ) [retaliation for testifying truthfully]; Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91, 276 Cal.Rptr. 130, 801 P.2d 373 (Rojo ) [sex discrimination]; Tameny v. Atlantic Richfield Co. 1980) 27 Cal.3d 167, 178, 164 Cal.Rptr. 839, 610 P.2d 1330 (Tameny ) [retaliation for refusal to participate in an illegal price-fixing scheme].) This common law remedy for wrongful discharge arguably extends to disability discrimination, though we have not addressed the issue.

Several Court of Appeal decisions have held that section 132a provides the exclusive remedy for discrimination based on a work-related disability, precluding FEHA or common law wrongful discharge claims. (See, e.g., Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1822, 59 Cal.Rptr.2d 59; Langridge v. Oakland Unified School Dist. (1994) 25 Cal.App.4th 664, 670, 31 Cal.Rptr.2d 34; Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 996-997, 26 Cal.Rptr.2d 541 (Angell ); Usher v. American Airlines, Inc. (1993) 20 Cal.App.4th 1520, 1526-1527, 25 Cal.Rptr.2d 335; Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1235, 13 Cal.Rptr.2d 170; Fortner v. Safeway Stores, Inc. (1991) 229 Cal.App.3d 542, 547, 551, 280 Cal.Rptr. 409; Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 1064, 252 Cal.Rptr. 878 (Pickrel ).) More recent decisions have reached this conclusion despite a 1993 amendment to the FEHA that plaintiff argues repealed section 132a, at least in part. Before the 1993 amendment, the FEHA provided: "Nothing contained in [the FEHA] shall be deemed to repeal any of the provisions of ... any ... law of this state relating to discrimination because of ... physical disability [or] mental disability...." (Gov.Code In this case, we consider whether FEHA and common law wrongful discharge remedies are available to an employee who has suffered discrimination based on a work-related disability, meaning, for present purposes, a disability resulting from an injury "arising out of and in the course of the employment" that gave rise to the discrimination. (Lab.Code, § 3600.) We conclude that section 132a does not provide the exclusive remedy for this type of discrimination and that FEHA and common law remedies are available.

                [959 P.2d 755] former § 12993, subd.  (a);  Stats.1992, ch. 913, § 25, p. 4325.)   The 1993 amendment added the phrase:  "unless those provisions provide less protection to the enumerated classes of persons covered under this part."  (Gov.Code, § 12993, subd.  (a).)
                

FACTUAL AND PROCEDURAL BACKGROUND

Theresa L. Dillon's complaint alleges that the City of Moorpark employed her as an administrative secretary from May 1990 until February 28, 1994. After she recovered from knee surgery and her doctor released her to return to work, City Manager Steve Kueny terminated her employment, informing her that her residual disability prevented her from performing her essential job functions. Dillon told Assistant City Manager Richard Hare that she could perform her job and that she wanted to return to work, but Hare told her she could not have her job back. Dillon also objected in writing to Kueny, again to no avail. Dillon then filed a charge of disability discrimination with the California Department of Fair Employment and Housing and received notice of a right to sue under Government Code section 12965, subdivision (b). On February 22, 1995, Dillon sued the City of Moorpark, Kueny, and Hare, alleging causes of action for discrimination in violation of the FEHA, wrongful termination in violation of public policy (common law wrongful discharge), breach of contract, and intentional and/or negligent infliction of emotional distress. She sought both compensatory and punitive damages.

Defendants demurred to all causes of action, arguing in part that, because Dillon's disability was work related, section 132a provided her exclusive remedy. Defendants asked the court to take judicial notice of Dillon's section 132a petition, which alleged essentially the same disability discrimination as part of a workers' compensation proceeding. The superior court disagreed that section 132a provided Dillon's exclusive remedy and overruled the demurrers to the FEHA and common law wrongful discharge causes of action. The court sustained the demurrers to the breach of contract and emotional distress causes of action on grounds not relevant here. Dillon then amended her complaint, dropping the breach of contract cause of action and restating the emotional distress cause of action.

On July 7, 1995, defendants petitioned the Court of Appeal for a writ of mandate, again arguing that section 132a provided Dillon's exclusive remedy and that the trial court therefore had erred in overruling the demurrers to Dillon's first two causes of action. The Court of Appeal denied the petition, citing the 1993 amendment to the FEHA, which it found to be "clear and intelligible." According to the Court of Appeal, the 1993 amendment meant "simply this: should any provision of state law offer less protection than does the FEHA, then such provision is inoperable and effectively preempted by the FEHA." The court concluded that section 132a offered "less protection" than the FEHA to victims of disability discrimination because it did not offer as many remedial options, did not provide a right to a jury trial or a right to appeal, and resulted in smaller overall awards. Because section 132a offered "less protection," the court concluded that the FEHA implicitly repealed section 132a. Without explanation, however, the court held that the FEHA only repealed the exclusivity aspect of section 132a. The court stated that section 132a remained an "alternative mechanism[ ]" for resolving disability discrimination claims.

We granted review in order to consider the interrelationship between section 132a and other statutory and common law remedies for disability discrimination in the workplace.

DISCUSSION

1. Exclusivity of section 132a remedy.

Section 132a provides: "It is the declared policy of this state that there should not be On its face, section 132a's remedies apply only when employers retaliate against employees for pursuing their rights under the workers' compensation law. In Judson Steel, however, we focused on the first sentence of section 132a, which declares a general policy barring discrimination against injured employees. (Judson Steel, supra, 22 Cal.3d at p. 667, 150 Cal.Rptr. 250, 586 P.2d 564.) We concluded that section 132a's remedies are available whenever an employee suffers "discrimination incurred as the result of his injury" (Judson Steel, supra, 22 Cal.3d at p. 668, 150 Cal.Rptr. 250, 586 P.2d 564), including discrimination based on disability (id. at p. 669, 150 Cal.Rptr. 250, 586 P.2d 564).

[959 P.2d 756] discrimination against workers who are injured in the course and scope of their employment. [p] (1) Any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because he or she has filed or made known his or her intention to file a claim for compensation with his or her employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor and the employee's compensation shall be increased by one-half, but in no event more than ten thousand dollars ..., together with costs and expenses not in excess of two hundred fifty dollars.... Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer."

In Portillo v. G.T. Price Products, Inc. (1982) 131 Cal.App.3d 285, 290, 182 Cal.Rptr. 291 (Portillo ), the court held that, in cases where section 132a...