Green v. State

• Decision Date: 23 August 2007
• Docket Number: No. S137770.,S137770.
• Parties: Dwight D. GREEN, Plaintiff and Appellant, v. STATE of California, Defendant and Appellant.
• Court: California Supreme Court

64 Cal.Rptr.3d 390

42 Cal.4th 254

165 P.3d 118

Dwight D. GREEN, Plaintiff and Appellant, v. STATE of California, Defendant and Appellant.

No. S137770.

Supreme Court of California.

August 23, 2007.

Superior Court, San Bernardino County; Ernest George Williams^*, Judge.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Jacob A. Appelsmith, Assistant Attorney General, Elizabeth Hong, Vincent J. Scally, Jr., Silvia M. Diaz and Michelle Logan-Stern, Deputy Attorneys General, for Defendant and Appellant.

Paul, Hastings, Janofsky & Walker, Paul W. Crane, Jr., Katherine C. Huibonhoa and Jaime D. Byrnes, San Francisco, for Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendant and Appellant.

Pine & Pine, Norman Pine, Beverly Tillett Pine, Sherman Oaks; Law Offices of David H. Greenberg and David H. Greenberg, Beverly Hills, for Plaintiff and Appellant.

Claudia Center, Lewis Bossing and Elizabeth Kristen, San Francisco, for Legal Aid Society-Employment Law Center, Disability Rights Advocates, Disability Rights Education and Defense Fund and The Disability Rights Legal Center as Amici Curiae on behalf of Plaintiff and Appellant.

Law Office of Jeffrey K. Winikow and Jeffrey K. Winikow, Los Angeles, for California Employment Lawyers Association as Amicus Curiae on behalf of Plaintiff and Appellant.

CHIN, J.

The Americans with Disabilities Act (ADA) requires that plaintiffs prove they are "qualified individuals" under the statute, i.e., that they have the ability to perform a job's essential duties before they can prevail in a lawsuit for discrimination. (42 U.S.C. § 12112(a).) Although California's Fair Employment and Housing Act (Gov.Code, § 12900 et seq. (FEHA))¹ does not expressly include the term "qualified individual," the question here is whether it includes a similar requirement. In 1997, a Court of Appeal held that it does. (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235, 66 Cal.Rptr.2d 830 (Brundage).) The Court of Appeal here held that it does not.

The FEHA prohibits discrimination against any person with a disability but, like the ADA, provides that the law allows the employer to discharge an employee with a physical disability when that employee is unable to perform the essential duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42 U.S.C. § 12112(a).) After reviewing the statute's language, legislative intent, and well-settled law, we conclude the FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires. We therefore reverse the Court of Appeal's judgment.

I. FACTS AND PROCEDURAL HISTORY

The facts and procedural discussion are taken largely from the Court of Appeal opinion, supplemented by the record.

Plaintiff began working for the State of California in 1974. In 1987, plaintiff worked as a stationary engineer for the Department of Corrections at the California Institute for Men in Chino (the Institute). Plaintiffs duties included maintenance and repair of equipment and mechanical systems and supervision and instruction of a crew of inmates. In 1990, plaintiff was diagnosed with hepatitis C. Plaintiff presumably contracted the disease while working on the sewer pipes at the Institute. From 1990 until 1997, plaintiff did not have any work restrictions because of the illness, nor did he lose any time from work. In addition, plaintiff was considered a good employee and received letters of commendation. George Woods, who supervised plaintiff from 1994 through 1997, stated in several letters of commendation that plaintiff was one of his best stationary engineers.

In 1997, plaintiffs physician, Dr. James Wang, began treating plaintiff with the drug interferon or Infergen (a brand of interferon). Plaintiff received Infergen injections as a treatment for hepatitis C. A single course of treatment required injections three times a week for a one-year period. The treatment caused plaintiff to feel fatigued, have trouble sleeping, and to suffer headaches and body aches.

On February 14, 1997, supervisor Woods received a letter from Dr. Wang, requesting that plaintiff be put on light duty until at least May or June of 1997. Woods accommodated plaintiff and allowed him to arrive to work late on the days he received the Infergen injections. At times, Woods assigned plaintiff to positions that did not require heavy labor. In all other respects, plaintiff continued to perform his duties.

On January 11, 1999, plaintiff was reprimanded for coming into work late on various days. Plaintiff explained to his employer that his ongoing medical condition prevented him from being punctual at times.

In June 1999, plaintiff injured his back while lifting a garbage disposal. The injury was unrelated to any side effects from the interferon treatment. Plaintiff continued working, but on the recommendation of the doctor treating his back was placed on light duty. Defendant had a policy that employees could be on light duty for a limited time only. Because plaintiffs back problems continued to restrict him to light duty work, in November 1999, defendant placed plaintiff on disability leave.

On July 3, 2000, plaintiff returned to work cleared for full duty, taking sick leave to attend physical therapy sessions for his back injury only. At that time, the Institute's return to work coordinator, Kristi Hilliker, reviewed plaintiffs file. Hilliker noticed the 1997 doctor's report the workers' compensation's qualified medical examiner (Dr. Alvin Markowitz) prepared at the time plaintiff began receiving his interferon injections. The report recommended plaintiff for light duty only. Based on this report, Hilliker concluded that plaintiff should not have been cleared for full duty work, and decided to meet with plaintiff that same day. Before the meeting could take place, however, plaintiff went to the coordinator's office complaining of fatigue due to his hepatitis, and requested to see a doctor. He met with the Institute's associate warden of business services, Sheila Tatum, and Hilliker. Plaintiff told them that he was feeling tired and wanted to see his doctor. Tatum and Hilliker told plaintiff that based on work restrictions contained in the 1997 medical report, plaintiff was incapable of performing his duties and could not return to work. They discussed various options with plaintiff, who initially decided to take disability retirement.

After the meeting, plaintiff and Hilliker communicated about plaintiffs options. Plaintiff received a letter from Hilliker dated October 2, 2000, informing him that unless he could be cleared for full duty, he could not return to his position as a stationary engineer. In November of the same year, plaintiff sought permission to return to work. Hilliker denied his request based on 1999 findings of a workers' compensation proceeding that found plaintiff had suffered a work-related injury.

Plaintiff subsequently filed a disability discrimination claim with the Department of Fair Employment and Housing. He then filed a complaint for damages in the superior court alleging that defendant discriminated against him because of his disability. Dr. Markowitz's 1997 report was not admitted into evidence, and Dr. Markovitz was not allowed to testify. The jury returned a general verdict for plaintiff, awarding him $597,088 in economic damages, and $2 million in noneconomic damages.

Defendant moved for a new trial challenging the trial court's decision to exclude Dr. Markovitz's testimony. The trial court rejected defendant's contention, but ruled that the motion for a new trial would be granted unless plaintiff accepted a remittitur, which plaintiff did.

On appeal, defendant raised several claims, including: The jury's verdict was not supported by the evidence; a decision of the workers' compensation judge barred plaintiffs disability discrimination claim; the court abused its discretion in excluding evidence of the subsequent Workers' Compensation Appeals Board proceeding and the testimony of Dr. Alvin Markovitz, the qualified medical examiner for the administrative proceeding; the trial court erred in failing to instruct the jury on the elements of a FEHA claim and the defenses; and the award of $2 million in noneconomic damages was excessive. Plaintiff cross-appealed, claiming that the trial court exceeded its authority in reducing the noneconomic damages and abused its discretion in denying the requested amount of attorneys fees.

The Court of Appeal affirmed the judgment in plaintiffs favor. Recognizing that trial court never instructed the jury on the element of qualification or inability to perform the Court of Appeal held that the FEHA "does not require plaintiff to prove that he is a qualified individual. Rather, the burden is on defendant to establish that plaintiff is incapable of performing his essential duties with reasonable accommodation." We granted defendant's petition for review.

As we explain, we disagree with the statement of defendant's burden of proof adopted by the Court of Appeal and advocated by plaintiff here. Instead, we conclude that the Legislature has placed the burden on a plaintiff to show that he or she is a qualified individual under the FEHA (i.e., that he or she can perform the essential functions of the job with or without reasonable accommodation). As explained further below, legislative intent, case law, and legislative history support defendant's position—a view that also finds support in Evidence Code section 500, which requires a plaintiff to prove each fact essential to the claim for relief he or she is asserting.

II. DISCUSSION

A. Statutory Analysis

Why have the California cases, beginning with Brundage, supra, 57 Cal. App.4th at page 235, 66 Cal.Rptr.2d 830, nearly unanimously presumed plaintiffs must prove, like their federal counterparts under the ADA, that they are qualified individuals under the FEHA in order to...