Estrada v. City of L. A.

Decision Date02 October 2013
Docket NumberB242202
Citation159 Cal.Rptr.3d 843,218 Cal.App.4th 143
CourtCalifornia Court of Appeals Court of Appeals
PartiesFrank ESTRADA, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.

OPINION TEXT STARTS HERE

See 8 Witkin, Summary of Cal. Law (10th ed. 2005) Constitutional Law, § 936 et seq.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles F. Palmer, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC415094)

Konell Ruggiero & Konell, Cheryl Konell Ruggiero for Plaintiff and Appellant.

Carmen A. Trutanich, City Attorney, Paul L. Winnemore, Deputy City Attorney, for Defendant and Respondent.

KLEIN, P. J.

Plaintiff and appellant Frank Estrada (Estrada) appeals a judgment following a court trial in an action against the City of Los Angeles (the City) for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.).

The essential issue presented is whether the trial court properly held that Estrada, formerly a volunteer Police Reserve Officer for the City, was not an employee for purposes of the FEHA.

Although Police Reserve Officers are volunteers who serve gratuitously, the City deems these individuals to be “employees” for the limited purpose of extending them workers' compensation benefits. Such benefits are not remuneration; rather, they help to make the volunteers whole, in the event they are injured while performing their duties. The City's policy decision to extend workers' compensation benefits to these individuals, who voluntarily put themselves in harm's way on behalf of the community, does not transform the volunteers' status to that of “employee” for purposes of FEHA. Accordingly, the trial court properly concluded Estrada was not an employee and therefore could not maintain a cause of action against the City for disability discrimination. The judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.

In 1990, Estrada became a reserve officer for the Los Angeles Police Department (LAPD or Department).

The Los Angeles Administrative Code (L.A. Admin. Code) provides that members of the Police Reserve Corps “shall be volunteer workers only and shall not be, or be deemed to be, employees of the City or of the Police Department for any purpose other than for the purposes of Section 22.233 [ 1] of this Article and shall serve gratuitously except as provided in Section 22.230 of this Article.” (L.A. Admin. Code, § 22.227.) 2

As an applicant for the reserve officer position, Estrada acknowledged in writing that “As a member of the Police Reserve Corps, I am not a regularly salaried officer of the [Department] and am not entitled to compensation for services rendered as a Police Reserve Officer.”

In 1995, while on duty, Estrada was involved in a traffic collision and sustained leg and back injuries. In 1996, while on duty, Estrada again was involved in a traffic collision and injured his right shoulder. In both instances, he obtained workers' compensation benefits and continued to receive benefits, as his injuries were not fully resolved.

In October 2004, the Food and Drug Administration (FDA) served a search warrant on Estrada's nutritional supplement company, Body Basics, Inc. Thereafter, Estrada was the subject of a personnel complaint by the Department's Internal Affairs Division. The personnel complaint alleged that while Estrada was off duty, he “inappropriately sold a product containing sildenafil citrate, the active ingredient of Pfizer's trademark prescription drug Viagra.”

In May 2005, Estrada was suspended from the Police Reserve Corps pending the outcome of the investigation of the personnel complaint. After being served with a notice of proposed disciplinary action, Estrada submitted a 139–page Skelly3response asserting discrepancies in the investigation and proffering additional evidence to exonerate him. The administrative proceedings resulted in Estrada's termination in December 2007, after 17 years as a reserve officer.

2. Superior court proceedings.

On June 3, 2009, Estrada filed suit against the City, alleging: disability discrimination under FEHA (Gov.Code, § 12945.2, subd. ( l )) (first cause of action); retaliation for filing workers' compensation claim (Lab.Code, § 132a) (second cause of action); and intentional infliction of emotional distress (IIED) (third cause of action).

Estrada subsequently withdrew the second cause of action, and the third cause of action was eliminated on demurrer. Thus, this matter proceeded only on the first cause of action, the FEHA claim.

The matter was bifurcated. The parties stipulated the threshold issue of Estrada's employment status was a question of law for the court to decide, in that the pertinent facts were undisputed. The parties filed trial briefs as well as requests for judicial notice of various materials, including benefits information for reserve officers, and various provisions of the City Charter and L.A. Administrative Code.

After considering the parties' written and oral arguments and evidence in support thereof, the trial court determined “as a matter of law that [Estrada] could not prove the elements of his first cause of action for disability discrimination in violation of the [FEHA] on the ground that [Estrada] is not an employee for purposes of the FEHA.” The trial court ruled “because the City of Los Angeles is a public agency whose applicable ordinance only permits employment of those appointed pursuant to the City Civil Service Rules and Estrada was not so employed, he is not an employee for purposes of the [FEHA].”

Estrada filed a timely notice of appeal from the judgment.

CONTENTIONS

Estrada contends: the trial court erred in concluding the definition of “employee” for purposes of his FEHA discrimination claim is governed by the City's civil service rules; a charter city, such as Los Angeles, cannot opt out of complying with state laws that address statewide concerns; FEHA defines “employee” broadly and looks to case law for a more useful definition; FEHA reflects matters of statewide concern and cannot be trumped by the City's civil service rules; including the City's police reserve officers within the definition of “employee” is consistent with the public policy expressed in FEHA and is reasonably related to the statewide concerns addressed in FEHA.

DISCUSSION
1. General principles; to recover for employment discrimination under the FEHA, an aggrieved plaintiff must have the status of an employee; an uncompensated volunteer is not an employee.

The FEHA was enacted “to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of ... physical disability, mental disability, [or] medical condition.... [¶] ... [¶] It is the purpose of [the FEHA] to provide effective remedies that will eliminate these discriminatory practices.” (Gov.Code, § 12920.) Thus the FEHA prohibits an employer from discriminating because of a disability against employees or applicants for employment “in compensation or in terms, conditions, or privileges of employment.” (Gov.Code, § 12940, subd. (a); see also § 12926.1.)

In “order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee.” (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842, 125 Cal.Rptr.2d 829 (Shephard ).) However, “the statutory definition of ‘employee’ found at [Gov.Code] section 12926, subdivision (c), does not actually define who is an employee under the FEHA; it merely excludes persons employed by close relatives and those ‘employed’ by nonprofit sheltered workshops and rehabilitation facilities.[ 4] Therefore, ... the FEHA definitional provision is not particularly helpful in determining under what circumstances one may be considered to be an employee for purposes of the FEHA.” ( Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 632, 27 Cal.Rptr.3d 452 ( Mendoza ).)

More helpful “is the definition of ‘employee’ contained in regulations enacted by the Department of Fair Employment and Housing [the DFEH] to implement the FEHA. The [DFEH], which was created by the FEHA ( [Gov.Code,] § 12901), defines an employee as [a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.’ (Cal.Code Regs., tit. 2, § 7286.5, subd. (b).) While the interpretation of a statute is ultimately a question of law, appellate courts will defer to an administrative agency's interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision. [Citation.] Far from being in conflict, section 7286.5, subdivision (b) of title 2 of the California Code of Regulations fills a gap in the governing statute, and provides a workable definition of who may be considered an employee and thus entitled to the protection of the FEHA. [¶] Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.” (Mendoza, supra, 128 Cal.App.4th at pp. 632–633, 27 Cal.Rptr.3d 452, italics added.) 5

In Mendoza, the plaintiff was a volunteer community service officer with the Town of Ross (Town) who worked as an uncompensated volunteer and assisted in traffic duties, crime prevention and neighborhood crime watch programs. (Mendoza, supra, 128 Cal.App.4th at p. 629, 27 Cal.Rptr.3d 452.) He sued for disability discrimination in violation of the FEHA after his position as a community service officer was terminated. (Id. at pp. 628–630, 27 Cal.Rptr.3d 452.) He argued he met the DFEH's “and thus the FEHA's, definition of an employee because he was ‘ appointed ’ to his volunteer position. As evidence of this, [the plaintiff] re...

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