Vernon v. State, A101244.

Citation10 Cal.Rptr.3d 121,116 Cal.App.4th 114
Decision Date25 February 2004
Docket NumberNo. A101244.,A101244.
CourtCalifornia Court of Appeals
PartiesHarry K. VERNON, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

SWAGER, J.

The trial court sustained the demurrer of the State of California (hereafter respondent or the State) without leave to amend, and entered judgment against appellant in his action for employment discrimination (Gov.Code, § 12940), violation of civil rights (42 U.S.C. §§ 1981, 1983), and declaratory relief. Appellant argues that he is entitled to maintain his causes of action even without a direct employment relationship with respondent. We conclude that the State is not subject to liability to appellant, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellant alleged in his first amended complaint that he is "an African-American male" who has been employed as a firefighter by the City of Berkeley (hereafter the City or Berkeley) since February of 1978. During his years as a firefighter, appellant has been afflicted with a chronic, hereditary "dermatological disorder" called psuedofolliculitis barbae, which occurs "exclusively in African-American males," and causes facial hairs to "curl back into the facial skin." Treatment of psuedofolliculitis barbae requires "cessation of shaving," among other therapy, to avoid the pain and disfigurement otherwise caused by the condition. Thus, upon the recommendation of the attending physician selected by Berkeley, appellant wore "a short beard during the performance of his employment" duties to alleviate the symptoms of his psuedofolliculitis barbae condition.

Appellant and other firefighters are often required to wear a respirator known as a Self-Contained Breathing Apparatus (SCBA) while fighting fires. According to the complaint, neither appellant nor any other of his fellow employees in the Berkeley Fire Department experienced any incident "of a SCBA leaking due to a firefighter's visible facial hair." And "on numerous occasions" when he was fit tested with a SCBA, appellant invariably met or exceeded the performance standards for respirator leak tests. Between 1984 and 1999, Berkeley permitted appellant and other firefighters to wear facial hair "without incident or adverse consequence while actively engaged in fire suppression" duties.

In October of 1999, Berkeley "implemented a new Respiratory Protection Policy" that prohibited any person "who had visible facial hair" from taking a SCBA mask fit test. The effect of the policy was to preclude any employee with facial hair from working "in fire suppression." The new Berkeley Respiratory Protection Policy was allegedly necessitated by "FED-OSHA" and "CAL-OSHA" regulations enacted in 1997 which "specifically prohibit the use or testing of SCBA respirators by employees with visible facial hair."1 The complaint asserts that Berkeley has "requested a variance" from the state regulations on grounds of racial and gender discrimination, but "CAL-OSHA has failed and refused to grant a variance" despite authority to do so. As a result of the CAL-OSHA regulations and the failure to obtain a variance, Berkeley has removed appellant "from his position as a firefighter in fire suppression" and terminated him from his employment position.

Appellant has alleged that the CAL-OSHA regulations implemented by Berkeley have a "discriminatory racial impact" upon "African-American males throughout the entire State of California," without any "business necessity for said regulation and said enforcement." He further asserts that respondent "knowingly promulgated and enforced" the CAL-OSHA regulations which "are discriminatory on the basis of race, color, ancestry, medical condition and physical condition," and have an "adverse impact" upon African-American males who suffer from psuedofolliculitis barbae, in violation of the provisions of the Fair Employment and Housing Act (FEHA) (Gov.Code, § 12900, et seq.).2 The complaint adds that the State refused to grant appellant "reasonable accommodations" from his "physical disability" by denying Berkeley's request for a "temporary or permanent variance" from the discriminatory CAL-OSHA regulations. Also included in the complaint are causes of action for denial of civil rights (42 U.S.C. § 1981 et seq.), and declaratory relief.3

The trial court sustained the State's demurrer to the first amended complaint without leave to amend on grounds that the State was neither an employer of appellant nor an aider and abettor in any discriminatory employment practices. This appeal followed.

DISCUSSION

Appellant's causes of action against the State challenge the enactment and enforcement of CAL-OSHA regulations that preclude the use or testing of SCBA respirators by employees with visible facial hair. He complains that application of the regulations to him and other African-American employees afflicted with the psuedofolliculitis barbae condition violates the FEHA as a discriminatory employment practice. Appellant acknowledges that the City rather than the State is his "direct employer." He argues that based upon his allegations that the State has "thoroughly dictated the City's employment policies" through the adoption of mandatory employment regulations and the refusal to grant an exemption to his direct employer, liability for the discriminatory effect of the CAL-OSHA regulations may be imposed upon the State as an indirect or joint employer under section 12940, subdivisions (a) and (d) even without a "direct employment relationship." He also maintains that the State "is liable under the FEHA not only as an indirect employer, but also under section 12940, subdivision (i)," as an "aider and abettor of the discrimination." Finally, appellant submits that he has stated a claim for declaratory relief despite the lack of a direct employment relationship with the State.

I. Respondent's Claim of Mootness.

Respondent contends that appellant's action has been rendered moot by the "experimental variance" granted to the City by the State's Department of Industrial Relations pursuant to Labor Code sections 6451 and 6452, which exempts operation of the challenged CAL-OSHA regulations until at least six months after August of 2003. Respondent argues that with the variance in place appellant is not foreclosed from wearing SCBA respirators or performing his employment duties as a firefighter for the City. Therefore, respondent claims "this action is moot."

"`As a general rule, "an appeal presenting only abstract or academic questions is subject to dismissal as moot." [Citation.]' (In re Jody R. (1990) 218 Cal.App.3d 1615, 1621 .)" (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547, 30 Cal.Rptr.2d 10.) "It is this court's duty `"to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it...."' [Citations.]" (Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921, 45 Cal.Rptr.2d 1; see also Hebert v. Los Angeles Raiders, Ltd. (1991) 23 Cal.App.4th 414, 421, 29 Cal.Rptr.2d 540.) "`When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214, 130 Cal.Rptr.2d 564.) "`"It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal."' [Citations.]" (Chantiles v. Lake Forest II Master Homeowners Assn., supra, at p. 921, 45 Cal.Rptr.2d 1; see also People v. DeLong (2002) 101 Cal.App.4th 482, 486, 124 Cal.Rptr.2d 293; In re Joel H. (1993) 19 Cal.App.4th 1185, 1193, 23 Cal.Rptr.2d 878.)

We do not consider the present appeal moot due to the issuance of an experimental variance that has provisionally granted the City an exemption from the regulatory prohibition against employees with facial hair wearing SCBA respirators. Appellant may still obtain effectual relief from this Court with a favorable ruling in this action. If we declare the CAL-OSHA regulations invalid as discriminatory, appellant will not need to rely upon additional, speculative variances that may or may not be granted to the City in the future. Furthermore, even if an action is moot, pursuant to established exceptions an appellate court may nevertheless exercise discretion to address the merits of an appeal if there may be a recurrence of the controversy between the parties or the case presents an issue of broad public interest that is likely to recur. (See White v. Davis (2003) 30 Cal.4th 528, 537, 133 Cal.Rptr.2d 648, 68 P.3d 74; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480, 98 Cal.Rptr.2d 202; In re Robert A. (1992) 4 Cal.App.4th 174, 182, 5 Cal.Rptr.2d 438.) The record before us does not indicate that the variance is other than temporary. Thus the constitutional issues of public interest presented by the case may recur between these parties or others, and we decline to find that appellant has raised only moot points. (See Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 171-172, 126 Cal.Rptr.2d 727, 56 P.3d 1029; Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 122, 105 Cal.Rptr.2d 46, 18 P.3d 1198; In...

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