Colmenares v. Braemar Country Club, Inc.

• Decision Date: 20 February 2003
• Docket Number: No. S098895.,S098895.
• Citation: 130 Cal.Rptr.2d 662,63 P.3d 220,29 Cal.4th 1019
• Court: California Supreme Court
• Parties: Francisco COLMENARES, Plaintiff and Appellant, v. BRAEMAR COUNTRY CLUB, INC., Defendant and Respondent.

130 Cal.Rptr.2d 662

29 Cal.4th 1019

63 P.3d 220

Francisco COLMENARES, Plaintiff and Appellant, v. BRAEMAR COUNTRY CLUB, INC., Defendant and Respondent.

No. S098895.

Supreme Court of California.

February 20, 2003.

Rehearing Denied April 16, 2003.

Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, Woodland Hills, Christopher W. Olmsted, San Diego; Disability Rights Education & Defense Fund, Linda D. Kilb, Berkeley, and Arlene B. Mayerson, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Catherine Z. Ysrael and Phyllis W. Cheng, Deputy Attorneys General, as Amici Curiae on behalf of Plaintiff and Appellant.

Eve L. Hill, Washington, Dist. of Columbia, and Paula D. Pearlman, Santa Monica, for Western Law Center for Disability Rights as Amicus Curiae on behalf of Plaintiff and Appellant. Littler Mendelson, Jody A. Landry, Kristin M. Stockholm and Alan S. Levins, San Diego, for Defendant and Respondent.

Gutierrez, Preciado & House, Calvin R. House, Pasadena; Greines, Martin, Stein & Richland, Martin Stein and Alison M. Turner, Los Angeles, for County of Los Angeles as Amicus Curiae on behalf of Defendant and Respondent.

Pillsbury Winthrop, Shawn Hanson and Katherine S. Ritchey, San Francisco, for Standard Insurance Company as Amicus Curiae on behalf of Defendant and Respondent.

Pillsbury Winthrop and George S. Howard, Jr., San Diego, for The Employers Group and The California Employment Law Council as Amici Curiae on behalf of Defendant and Respondent.

The Legal Aid Society—Employment Law Center, Claudia Center and Patricia A. Shiu, San Francisco, for Patrice L. Goldman as Amici Curiae.

KENNARD, J.

The Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on a physical disability. (Gov. Code, § 12940, subd. (a);¹ see Esberg v. Union Oil, Co. (2002) 28 Cal.4th 262, 267, 121 Cal.Rptr.2d 203, 47 P.3d 1069.) In 1997, defendant Braemar Country Club (Braemar) terminated plaintiff Francisco Colmenares, who had been in its employ for 25 years. Colmenares sued, alleging in part discrimination based on physical disability (a bad back), in violation of the FEHA. (§ 12900 et seq.) In May 2000, the trial court granted Braemar's motion for summary judgment on the basis that Colmenares had failed to make a prima facie showing of physical disability. Colmenares appealed.

On January 1, 2001, while the case was before the Court of Appeal, the Prudence Kay Poppink Act (Poppink Act) took effect. The Poppink Act states that "under the law of this state" a person is physically disabled when he or she has a physiological condition that "limits a major life activity" (§ 12926, subd. (k)(1)(B)(i), italics added). In contrast, federal law requires that a disability "substantially limits one or more ... major life activities" of an individual. (42 U.S.C. § 12102(2)(A), italics added; 29 C.F.R. § 1630.2(g) (2002).) The Court of Appeal refused to apply the Poppink Act to Colmenares because his termination preceded its effective date and at the time of termination, according to the Court of Appeal, the FEHA applied the federal law's narrower definition of physical disability. Because Colmenares had conceded that his back injury did not substantially limit his ability to perform his job, the Court of Appeal concluded that he could not establish a claim for disability discrimination. The Court of Appeal affirmed the trial court's judgment.

Two months later, another division of the same Court of Appeal decided Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, 109 Cal.Rptr.2d 543, review granted October 10, 2001, S103311. There, as here, the plaintiffs claim of discrimination based on physical disability arose before the January 1, 2001, effective date of the Poppink Act. Disagreeing with the Court of Appeal here, the Wittkopf court held that to come within the FEHA's definition of physical usability a plaintiff need only show that the physical impairment limits a major life activity. Wittkopf noted that both before and after the Poppink Act the FEHA's definition of physical disability requires only a mere limitation and not a substantial one. Therefore, Wittkopf held that the Poppink Act had merely clarified existing law on the degree of limitation required and the statute as clarified has no true retrospective effect. We granted review to resolve the conflict between Wittkopf and the Court of Appeal's decision in this case.

I.

We recite the facts as set out in the record before the trial court when it granted defendant's motion for summary judgment. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66, 99 Cal. Rptr.2d 316, 5 P.3d 874.) In 1972, plaintiff Colmenares began working for defendant Braemar as a general laborer. In 1981, Colmenares injured his back at work. Thereafter, under doctor's orders, Colmenares was given only light duties. In 1982, Braemar promoted him to foreman in charge of a golf course maintenance crew, a position that took his physical limitations into consideration. Performance reviews for Colmenares from 1986, 1987 and 1990 rated his performance as good, and he received raises. Beginning in 1995, a new supervisor began giving Colmenares unfavorable performance reviews. In July 1997, Braemar reassigned Colmenares from supervising a course maintenance crew to supervising a clubhouse construction project that involved heavy labor. In September 1997, Braemar fired Colmenares for "deficiencies in his work performance."

In December 1997, Colmenares filed an administrative complaint with the Department of Fair Employment and Housing, alleging that in 1995 Braemar began requiring him to perform "heavier work" and two years later fired him because of his bad back. Having exhausted his administrative remedies, Colmenares in March 1999 filed a complaint in superior court alleging, as here relevant, that his termination violated the FEHA because it was based on his physical disability, namely, a "chronic back injury."

Braemar moved for summary judgment on the ground that Colmenares had no "legally cognizable disability" because his back condition did not "substantially" limit a major life activity. Braemar relied on Colmenares's deposition testimony in which he conceded that his back condition did not substantially limit his ability to work as a foreman. Colmenares, however, argued that under the FEHA he need only establish some limitation, not the substantial limitation standard of federal law, of his ability to perform major life activities. (§ 12926, subd. (k)(1)(B); Cal.Code Regs., tit. 2, § 7293.6, subd. (c)(1)(A)(2).) The trial court disagreed, ruling that California followed federal law in requiring that a disability "substantially" limits major life activities. (42 U.S.C. § 12102(2)(A); 29 C.F.R. § 1630.2(g)(1) (2002).) Finding that Colmenares had "fail[ed] to meet his burden" to produce evidence that his back condition substantially limited his work activities, the trial court granted Braemar's motion for summary judgment. Colmenares appealed.

The Court of Appeal affirmed. It construed the FEHA, before its amendment by the Poppink Act, as requiring the physical disability to substantially limit one or more major life activities (the test under federal law), and it held that the Poppink Act's broader standard, requiring only that the disability "limits a major life activity," could not be applied retrospectively to Colmenares, whose 1997 firing occurred before that act took effect on January 1, 2001.²

II.

Since 1973 California has prohibited employment discrimination based on "physical handicap." (Stats.1973, ch. 1189, § 6, p. 2501 [enacting Lab.Code, former § 1420]; see Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1056, 22 Cal.Rptr.2d 287, 856 P.2d 1143 (Cassista).

) In 1980, that prohibition and the definition of physical handicap to include "impairment of sight, hearing, or speech, or impairment of physical ability" were incorporated into the newly enacted FEHA. (Stats.1980, ch. 992, § 4, p. 3144 [enacting Lab.Code, former § 1413, subd.(h) ].) The FEHA did not define impairment. That same year, the Fair Employment and Housing Commission (FEHC), the entity charged with implementing the FEHA (§ 12935), adopted a regulation drawn from a federal regulation (45 C.F.R. § 84.3(j)(1) (1980)) implementing the federal Rehabilitation Act of 1973. (Pub.L. No. 93-112 (Sept. 26, 1973) 87 Stat. 357; 45 C.F.R. § 84, Appen. A (1992).) Instead of defining "impairment," the term used in the California statutes (first in the Labor Code and then in the FEHA), the FEHC's 1980 regulation embraced federal law and defined "physical handicap" as a condition that "substantially limits one or more major life activities." (Former Cal. Admin. Code, tit. 2, § 7293.6, subd. (j)(1).)

In 1990, Congress enacted the Americans with Disabilities Act (ADA). (42 U.S.C. § 12101, et seq.) In 1992, the California Legislature significantly amended the FEHA. Among other things, it substituted the term "physical disability" for "physical handicap" (former § 12920, as amended by Stats.1992, ch. 913, § 19, p. 4297), and it generally modeled the definition of "physical disability" (former § 12926, subd. (k), as amended by Stats. 1992, ch. 913, § 21.3, p. 4308) on that in the ADA. (See Cassista, supra, 5 Cal.4th at pp. 1059-1060, 22 Cal.Rptr.2d 287, 856 P.2d 1143.) As relevant here, there was one notable difference between the FEHA and the ADA: While the federal act described a disabled individual as one whose disability "substantially limits one or more major life activities" (42 U.S.C. § 12102(2)(A), italics added), the 1992 amendment to the FEHA defined physical disability as an impairment that merely "[l]imits an individual's ability to participate in major life activities." (Stats.1992, ch. 913, § 21.3, p. 4308, amending §...