Prilliman v. United Air Lines, Inc.

• Decision Date: 25 March 1997
• Docket Number: No. B098592,B098592
• Citation: 62 Cal.Rptr.2d 142,53 Cal. App. 4th 935
• Court: California Court of Appeals
• Parties: , 6 A.D. Cases 1010, 9 NDLR P 257, 97 Cal. Daily Op. Serv. 2173, 97 Daily Journal D.A.R. 3971 Ronald C. PRILLIMAN et al., Plaintiffs and Appellants, v. UNITED AIR LINES, INC., et al., Defendants and Respondents.

Page 142

62 Cal.Rptr.2d 142

53 Cal.App.4th 935, 6 A.D. Cases 1010, 9 NDLR P 257,

97 Cal. Daily Op. Serv. 2173,

97 Daily Journal D.A.R. 3971

Ronald C. PRILLIMAN et al., Plaintiffs and Appellants, v. UNITED AIR LINES, INC., et al., Defendants and Respondents.

No. B098592.

Court of Appeal, Second District, Division 7, California.

March 25, 1997.

Review Denied July 9, 1997.

Neal & Fox, David Anthony Neal and Beth A. Fox, Beverly Hills, for Plaintiffs and Appellants.

Mayer, Brown & Platt, James W. Gladden, Jr., Teresa A. Beaudet, Jeffrey S. Piell and Jerome M. Jauffret, Los Angeles, for Defendants and Respondents.

LILLIE, Presiding Justice.

Plaintiffs, formerly two pilots employed by defendant United Air Lines, Inc. (United), appeal from summary judgment granted in favor of defendants on plaintiffs' complaint for disability discrimination and negligence. ¹ The principal issue on appeal is whether triable issues of fact exist as to whether, pursuant to the Fair Employment and Housing Act (Gov.Code, § 12940 et seq.), United "reasonably accommodated" plaintiffs after United learned that plaintiffs had been diagnosed with acquired immune deficiency syndrome (AIDS).

FACTUAL AND PROCEDURAL BACKGROUND

Inasmuch as appellants do not challenge the trial court's conclusion that they failed to identify any evidence which created a dispute as to any of the defendants' 52 statements of undisputed facts which formed the basis for their motion for summary judgment, we deem the facts to be undisputed for purposes of this appeal. The following facts are gleaned from the moving parties' separate statement of undisputed facts, supplemented with information from documents and declarations offered in support of, or in opposition to, the motion for summary judgment.

A. Plaintiff Rafalowski.

Rafalowski started employment with United as a flight officer in June 1985, and throughout his employment his performance evaluations were satisfactory or above. Commercial pilots must regularly undergo comprehensive physical examinations administered by a Federal Aviation Administration (FAA) medical examiner in order to receive a medical certificate from the FAA; at each FAA medical examination, a pilot is required to complete an application which includes a complete medical history identifying and explaining all medical conditions that the pilot has or has ever had; in addition, the pilot must list all visits in the last three years to a physician, physician assistant, or psychologist for treatment, examination, evaluation or counseling. If a pilot identifies a disqualifying physical condition on his application, medical certification will be denied or deferred to the FAA for further consideration. Pilots who have been diagnosed with AIDS or AIDS defining conditions, such as Kaposi's sarcoma, are not eligible to receive a medical certificate and are prohibited by the FAA from piloting an aircraft.

As a matter of regular procedure at United, all pilots are subjected to routine physical examinations conducted by United medical staff. Blood tests taken at such physicals are subjected to lab work which could impact the pilot's ability to continue flying.

Although Rafalowski tested positive for Human Immunodeficiency Virus (HIV) in 1985, on his June 10, 1994, application to the FAA for his medical certification, he stated only that he had surgery for a deviated septum performed by a Dr. Berman; he provided no other medical history and did not identify any other visits to other health care professionals.

Rafalowski's primary treating physician was Dr. Kooshian, who monitored Rafalowski's AIDS; by early 1994, Dr. Kooshian diagnosed Rafalowski with AIDS and other AIDS-related opportunistic infections, including Kaposi's sarcoma and oral thrush. Dr. Kooshian had treated Rafalowski's Kaposi's sarcoma with chemotherapy and drugs, and also prescribed a series of vitamin supplement infusions administered by a nurse. In 1993 and 1994, Rafalowski was treated and/or examined by a number of other doctors for his HIV and AIDS-related conditions.

Tests results from Rafalowski's company physical in early 1994 were abnormal, so he was asked to return for additional testing; the abnormal results were not present after the second test. Rafalowski never informed United that he had HIV or AIDS. Defendant Dr. Daner Reider, United's Regional Flight Surgeon who was responsible for fitness-for-duty evaluations, reviewed Rafalowski's test results and drafted departmental correspondence to Rafalowski on June 6, 1994, stating that "Almost total resolution of all abnormal results, although triglycerides remain significantly high. Prompt decrease of abnormal liver tests strongly suggest some very acute process that has now resolved. It does not suggest infectious hepatitis but implies a toxic effect from some chemical. In most cases, the chemical most likely to cause such a problem is alcohol. Strongly recommend careful self-evaluation of drinking behavior. Call me if you have any questions."

Soon after June 6, 1994, Dr. Reider discussed Rafalowski's test results with Rafalowski's personal physician, Dr. Kooshian; Dr. Kooshian told him that Rafalowski had been treated for epistaxsis (recurrent nose bleeds) and a malignancy, Kaposi's sarcoma; Dr. Kooshian also explained that Rafalowski had been diagnosed with AIDS. On June 21, 1994, Dr. Reider received a letter from Dr. Kooshian which stated in pertinent part that "This letter is a follow-up to our telephone conversation yesterday, June 16, 1994. This is confirmation that [Rafalowski] has been placed on indefinite total disability secondary to recurrent epistaxsis and a malignancy. This disability commenced on June 11, 1994."

Dr. Reider determined that Rafalowski could no longer physically qualify for a FAA medical certificate with his AIDS diagnosis, and recommended that his flight duties be removed and that he be permanently grounded. On June 24, 1994, Dr. Gary Kohn, United's Corporate Medical Director, placed Rafalowski on medical disability effective June 24, 1994, at the end of his sick leave eligibility. ² At no time after his grounding did Rafalowski or Dr. Kooshian contact Dr. Reider to discuss or contest the grounding. Rafalowski applied for and received monthly disability benefits from the government. Rafalowski did not request an alternative job position after he was grounded by United. Dr. Kooshian testified in deposition that in June 1994, Rafalowski had multiple medical problems and was sick enough to be placed on indefinite disability; he was not healthy enough to hold a job where he would have to work eight hours a day, either standing for prolonged periods of time or sitting for prolonged periods of time. Rafalowski's condition worsened; in October 1994, on occasion, Rafalowski began to use a wheelchair to get around; in December 1994, he was diagnosed with "CMV," a viral infection of the spinal cord and central nervous system, which Dr. Kooshian testified caused a progressive muscle wasting and loss of use of his lower extremities with a minimal loss of vision and some mental confusion, or AIDS-related dementia.

B. Plaintiff Prilliman.

Prilliman began employment as a flight officer with United in June 1985, and thereafter received job performance evaluations of satisfactory or above. In 1990, he was diagnosed with HIV; in late 1993 he began seeing Dr. Kooshian to treat his HIV-positive condition; Prilliman was also treated by Drs. Kaslow and Shallenberger; by early 1994, Prilliman's condition advanced to AIDS. In Prilliman's July 1994 application to the FAA for his medical certification, the only item he listed in response to his medical history inquiry was "sinus surgery in July [1993]"; he listed two visits to a health professional in the last three years, including a visit to Dr. Kooshian for treatment for the flu. He did not identify HIV or AIDS in his medical history, or any of the numerous medications, infusions, X-rays, CAT scans or MRI's he received in the preceding year; he also did not tell the FAA medical examiner that he was HIV-positive. Nor did Prilliman disclose his HIV/AIDS condition to United, Dr. Reider, or any other United doctors. From August 20 to 23, 1994, Prilliman captained a 737 aircraft from Los Angeles to Denver to San Antonio to New York to Chicago to Seattle to Los Angeles to Cabo San Lucas and back to Los Angeles; he had no difficulty in the safe and effective operation of the aircraft.

United first learned of Prilliman's disqualifying medical condition of AIDS on August 25, 1994, from the results of tests performed by a United physician on August 24, 1994, as part of United's regular physicals for pilots. Based on the results of blood tests taken at the examination and the medical history given by Prilliman, Dr. Reider decided to ground Prilliman pending a further investigation into his medical condition; Dr. Reider contacted Dr. Kooshian, who verified that Prilliman was HIV-positive with a diagnosis of AIDS. United then determined that Prilliman no longer satisfied FAA physical requirements and discontinued his flight responsibilities and placed him on medical disability effective October 27, 1994, at the end of his sick leave eligibility.

After Prilliman was grounded, a United Administrative Coordinator advised him to apply for social security benefits in order to supplement his disability income, and he did so. As a result of his grounding, Prilliman began to receive from United a monthly disability benefit of $6,610.00, or 55 percent of his salary; he also currently receives a monthly Social Security Disability benefit of $1,351.00, and for a year he had received a monthly disability benefit of $1,340.00 from the State of California. Prilliman did not request an alternative job position after he was grounded by United. In answers to interrogatories, United admitted that at the time the plaintiffs were grounded, United did not consider them for any...