Knight v. Hayward Unified School Dist.

Decision Date24 August 2005
Docket NumberNo. A106449.,A106449.
Citation33 Cal.Rptr.3d 287,132 Cal.App.4th 121
CourtCalifornia Court of Appeals Court of Appeals
PartiesANDREW K. KNIGHT, Plaintiff and Appellant, v. HAYWARD UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Nossaman, Guthner, Knox & Elliott, LLP John T. Hansen Deborah E. Beck, San Francisco, for Appellant, Andrew K. Knight.

LaPlante & Spinelli Domenic D. Spinelli M. Teresa Abad Levenfeld, for Respondent, Hayward Unified School District.

Kronick, Moskovitz, Tiedemann & Girard Robin Leslie Stewart, Sacramento, for Amicus Curiae, Schools Excess Liability Fund in support of Respondent.

Jacobsen, Hansen, Najarian & McQuillan Leith B. Hansen, Fresno, for Amicus Curiae, Schools Insurance Group in support of Respondent.

KLINE, P.J.

Andrew K. Knight, a teacher, appeals the grant of summary judgment by the trial court in favor of his employer, Hayward Unified School District (the District), on his claim of disability discrimination brought under the California Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900 et seq.).1 Appellant's claim arises from the fact that the group health insurance policy provided by the District to its employees does not cover in vitro fertilization (IVF) treatment, which appellant and his wife required and were obliged to obtain at their own expense.

We shall affirm the judgment.

FACTS AND PROCEEDINGS BELOW

One of the group healthcare plans made available by the District to its employees was that of the PacifiCare Health Maintenance Organization (the PacifiCare Plan), which was the healthcare plan appellant selected for coverage. Though it covered many other forms of infertility treatment, the PacifiCare Plan specifically excluded IVF treatment from coverage. This exclusion applied to all District employees who selected the PacifiCare Plan, who were covered under the same terms and conditions.

Appellant's wife, who was never employed by the District but was covered as his dependent, was in 1991 diagnosed with polycystic ovarian disease and, apparently for that reason, unable to become pregnant. Initially, appellant's wife received various forms of infertility treatment—including a laparoscopy, treatment with the prescription drug Clomid, and three cycles of intrauterine insemination—that were all covered under the PacifiCare Plan. In October 1998, and again in January 1999, appellant's wife underwent IVF treatment. Both procedures resulted in pregnancy and subsequent miscarriages. Thereafter, in March 1999, appellant and his wife adopted their son.

Appellant's wife resumed infertility treatment in late 1999 and early 2000 through Metformin/Glucophage treatment that was also covered under the PacifiCare Plan. After eight months of treatment, she conceived a daughter, who was born on January 8, 2001.

At all material times, healthcare plans offered by the District for purchase by its employees were selected by a Joint Committee for Health Cost Containment (JCHCC), composed of District staff and representatives of the employee unions with which the District dealt, including appellant's union, the Hayward Education Association (HEA). The plans to be offered by the District were proposed by majority vote of members of the JCHCC. However, because the collective bargaining agreement between the District and HEA provided that the union "retains the right to select health and welfare plans and carriers," the District could not offer a particular plan to employees that had not first been ratified by the HEA. After the PacifiCare Plan was selected by the JCHCC and ratified by the HEA, the District entered into a group healthcare contract with PacifiCare that became a part of the collective bargaining agreement with the HEA. Employees could either obtain healthcare benefits under the PacifiCare Plan, or from one of the other health insurance carriers available under the District's core plan, or "opt out" of health coverage upon presentation of proof of alternate coverage.

Appellant and his wife first became aware IVF treatment was not covered by the PacifiCare Plan in April 1998. After one of their physicians nevertheless requested preauthorization for such treatment, it was denied on August 28, 1998, and the denial was upheld by PacifiCare's Appeals and Grievance Committee on December 22, 1998. On October 7, 1998, appellant and his wife wrote the assistant superintendent of employee services for the District requesting that the District "improve the infertility insurance coverage." The letter stated that "[i]nfertility is clearly a physical impairment [and] excluding IVF services is a disability-based employment practice that is illegal" because it violates the American with Disabilities Act of 1990(ADA) (42 U.S.C. § 12101 et seq.). There was no response to this letter. Five days later, appellant's wife commenced IVF treatment at her and appellant's expense.

On June 8, 1999, appellant filed a discrimination charge against the District with the Equal Employment Opportunity Commission (EEOC), alleging sex and disability-based discrimination under the ADA. The EEOC filed appellant's charge with the California Department of Fair Employment and Housing (DFEH), which immediately prepared a right to sue notice stating that "[t]he EEOC will be responsible for processing the complaint. DFEH will not be conducting an investigation into this matter. EEOC should be contacted directly for any discussion of the charge. DFEH is closing its case on the basis of `processing waived to another agency.'"

Appellant's administrative complaint, filed in persona propria, stated he was a teacher employed by the respondent District and enrolled under its health plan, and that "[m]y dependent has been diagnosed with a disability. In October 1998, I requested that [the District] improve its health plan coverage since it excludes coverage for treatment used exclusively or nearly exclusively to treat my dependent's disability. To date, I have not received a response. [¶] [The District] has discriminated against me by participating in a ... contractual relationship with PacifiCare which discriminates against me based on the known disability of my dependent."

After conducting an investigation, on July 12, 2000, the EEOC issued a determination of probable cause that the District discriminated against appellant by excluding IVF treatment from the group health plan offered its employees. The determination stated that appellant "is being discriminated against as evidenced by [the District's] having contracted for an insurance plan which denies coverage for Intro-Vitro [sic] Fertilization, a treatment which is used exclusively or nearly exclusively to treat a disability, infertility. Further, [appellant] is a member of a class of employees whose dependents are being denied certain medical insurance coverage solely because of their disability, infertility." After conciliation failed, the EEOC issued a "right to sue" letter.

On February 21, 2001, the United States Supreme Court issued its opinion in Board of Trustees of the Univ. of Ala. v. Garrett (2001) 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866, holding that the ADA does not apply to the states. Because California school districts are considered subdivisions of the state, appellant filed suit in superior court under the FEHA, the pertinent parts of which are substantially similar to title I of the ADA.

The first amended complaint, filed September 6, 2001, alleged four causes of action. The first and second alleged disparate treatment discrimination and disparate impact discrimination based on appellant's disability, and the third and fourth repeated those charges but based them on appellant's association with his disabled wife. The District's demurrer was sustained in part and overruled in part. The court dismissed the first and second causes of action for failure to exhaust administrative remedies, because appellant's administrative complaint did not allege he was disabled, as did his complaint, but only that his wife was disabled. The court overruled the demurrer as to the third and fourth causes of action, which were allowed to stand.

After conducting discovery, the District moved for summary judgment as to the third and fourth causes of action. The court granted the motion and on that basis entered judgment in favor of the District. The court denied the District's request for an award of attorney fees, but awarded it costs. This timely appeal followed.

DISCUSSION

Appellant's arguments on appeal are quinary: (1) the trial court erred in sustaining the District's demurrer as to his first two causes of action because he did not fail to exhaust administrative remedies; (2) the District cannot avoid liability under the FEHA by blaming the alleged discrimination on his union; (3) the PacifiCare Plan adversely affects the disabled even though it is offered to the disabled and non-disabled alike; (4) undisputed evidence establishes all elements necessary for a prima facie disparate impact disability discrimination claim, entitling him to try his case to a jury; and (5) sufficient evidence established a disparate treatment disability discrimination claim, entitling him also to try that issue to a jury. Appellant also maintains that the trial court improperly allowed the District to recover its costs.

As we shall determine that appellant cannot establish a prima facie case of disability discrimination, it is unnecessary for us to address his other claims.2

I.

"Summary judgments are reviewed de novo. [Citations.] `Because trial judges no longer exercise discretion in considering a summary judgment motion, application of the abuse of discretion standard is inappropriate. Under current law, summary judgment motions raise only questions of law regarding the construction and effect of the moving and opposing papers; and questions of law are subject to the independent standard of review.' [Citations.] [¶] We apply the same three-step analysis required...

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