Opinion
E032891.
11-17-2003
DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Plaintiff and Appellant, v. COUNTY OF SAN BERNARDINO SHERIFFS DEPARTMENT, Defendant and Respondent; BERNARD ANTHONY SKILES, Real Party in Interest.
Paul R. Ramsey, Chief Counsel, Joseph H. Duff, Senior Staff Counsel, and Janie Hickok Siess, Assistant Chief Counsel, for Plaintiff and Appellant. Arias, Lockwood & Gray, Joseph Arias and Christopher D. Lockwood for Defendant and Respondent.
OPINION
Plaintiff and appellant California Department of Fair Employment and Housing (plaintiff) appeals from the trial courts judgment, which found that defendant and respondent County of San Bernardino Sheriffs Department (defendant) did not discriminate against Bernard Anthony Skiles (Skiles) on account of a physical disability.
On appeal, plaintiff contends: (1) the substantial evidence at trial supported a judgment in favor of plaintiff because defendant violated unlawful discrimination practices pursuant to the Fair Employment and Housing Act (FEHA) by refusing to hire him and because defendant failed to meet its burden with respect to asserted affirmative defenses; (2) defendant failed in its duty to consider and provide reasonable accommodation of a known physical disability; and (3) defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring. We affirm.
Government Code section 12900 et seq.
FACTUAL AND PROCEDURAL BACKGROUND
In 1995, while Skiles was on vacation with his wife in Mexico, he fell to the ground from a second-story balcony. Since Skiles was in the Marine Corps, his wife arranged for him to be flown to a military hospital in Texas, where surgery was performed. Skiles continued to experience pain, and a second surgery was performed. He finally had a third surgery to remove the titanium rods which had been implanted in his back during the first surgery. Skiles elected not to return to active duty in the Marines and was discharged.
In 1998, Skiles began the application process with defendant to become a deputy sheriff trainee. He passed the written examination, the physical agility test, the background investigation, and the selection interview. He was disqualified at the medical examination phase.
On January 26, 2001, plaintiff filed a complaint against defendant (the complaint), on behalf of Skiles, attempting to recover damages and injunctive relief. The complaint sought recovery on the following theories: (1) defendant discriminated against Skiles by refusing to hire him, "on the basis of a physical disability and/or a perceived physical disability condition," in violation of Government Code section 12940, subdivision (a) (first cause of action); (2) defendant failed to provide Skiles with a discrimination-free workplace, in violation of section 12940, subdivision (k) (second cause of action); (3) defendant failed to reasonably accommodate a known disability, in violation of Government Code section 12940, subdivision (m) (third cause of action); and (4) for an injunction compelling defendant to comply with the FEHA (fourth cause of action).
All further statutory references will be to the Government Code, unless otherwise noted.
Both parties waived a jury, so the matter proceeded to a court trial on April 15, 2001. The following evidence was presented at trial.
Duties of a Deputy Sheriff
Plaintiff presented the testimony of Dr. Eugene Hubbard, who was an orthopedic surgeon, a martial arts expert, and a retired reserve police officer for the City of Compton. Dr. Hubbard testified that deputies in San Bernardino County spend 99.9 percent of their time riding around in cars — getting in and out — answering calls, and doing reports. However, on cross-examination, Dr. Hubbard admitted that he had never worked for San Bernardino County as a deputy sheriff and had never done any surveys to determine what deputies in San Bernardino County actually do. However, he also admitted that he never read any job description or requirements for a San Bernardino County deputy sheriff, until he was on the witness stand. He based his opinion on his experience of being a reserve police officer in Compton for 28 years.
As part of its requirements for employment, the sheriffs department followed POST (Police Officer Standards and Training) guidelines. "POST is a state-funded organization designed to insure professional standards in law enforcement." The POST requirements included: (1) the "ability to traverse irregular surfaces, including under varying climactic conditions, climbing steps, scaling walls and fences, using ladders, crawling through restricted spaces and traversing graded surfaces, either at a normal or accelerated gait and when approaching, pursuing or retreating from persons, objects or locations;" (2) the "ability to restrain violent or uncooperative persons, including the mobility and agility to apply appropriate restraining techniques against one or more persons under both passive and combative circumstances; to affix appropriate restraining devices upon others; to temporarily subdue others without resorting to excessive or unreasonable force;" and (3) the "ability to move and/or carry heavy objects, including lifting, carrying or assisting other persons unable/unwilling to move themselves." The POST standards state that "[e]ach of these essential tasks must be performed individually and unassisted by other persons, since this class of employment requires an ability to work alone."
Diffey v. Riverside County Sheriffs Department (2000) 84 Cal.App.4th 1031, 1034 (Diffey), overruled on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, footnote 6.
Defendant also presented the testimony of Lieutenant William Lemew, who had been a deputy sheriff with San Bernardino County for a total of 20 years — 17 years full time and 3 years as a reserve. He testified that deputies are commonly rotated among a variety of assignments, including the jail facility, patrol, and detective positions. A deputy can spend a considerable amount of time on patrol, before getting promoted to a detective position. Lieutenant Lemew stated that one of his friends was assigned to patrol duty for 16 years.
Lieutenant Lemew stressed the importance of having "able bodied people both one beat over or in [his] same area to assist when [he needs] help." He testified that the sheriffs department did not have any accommodations that could be provided for a deputy who had a physical disability. He stated that the sheriffs department only had "a limited modified duty deputy status that [was] a 90 day position." Such modified duty applied to deputies who had been injured. The sheriffs department would put such person at a desk job as a temporary assignment.
Dr. Khannas Testimony
The pre-employment medical examination was performed by Dr. Prerna Mona Khanna. She is board-certified in internal medicine, in public health and preventive medicine, and in occupational medicine. Dr. Khanna served as the Medical Director for Occupational Health Service for the County of San Bernardino, from July 1998 through April 2002. At the time of trial, she was the Chief of Medical Services for Riverside County.
On May 11, 1999, the initial physical assessment of Skiles was performed by a nurse. She was concerned because Skiles had diminished tendon reflexes in his knee and an extensive history of physical injury to his spine. Because of her concerns, the nurse asked Dr. Khanna to become involved. Dr. Khanna spoke with Skiles, examined him, and confirmed the absence of reflexes. Skiles gave her his military medical records concerning his spine. She took the records back to her office for review. Dr. Khanna testified that, as a result of his surgeries, Skiles had six segments or disks of his spine fused together. She testified that Skiles was, at least potentially, not as flexible as he would have been without the fusion. She also explained that Skiles was at an increased risk for accelerated degeneration of the disk below the fusion and just above the fusion because of the increased stress put on the actual segment itself. Dr. Khanna was concerned that Skiles could become physically incapacitated, perhaps during a physical altercation with a suspect, and could endanger himself and others. Dr. Khanna stated that it was impossible to predict exactly when Skiless back condition might incapacitate him because it was impossible to predict what situations he would encounter as a deputy sheriff or when he would encounter them. Dr. Khanna relied upon the standards set forth in a medical screening manual for California law enforcement, as well as the POST list of the essential functions of a deputy sheriff. The medical screening manual stated that candidates with a history of a spinal fusion of four or more segments could develop "frequent and limiting pain with heavy lifting, pushing, pulling and wrestling, and should therefore be restricted."
Dr. Khanna also consulted with Dr. John Steinmann, who was an orthopedic consultant. He is board certified in osteopathic surgery. Dr. Steinmann also expressed his concern about Skiless ability to meet the essential job functions of a deputy sheriff because of his spine. Based on her discussion with Dr. Steinmann, as well as her own judgment, Dr. Khanna medically disqualified Skiles from the position. Specifically, she felt that Skiles would not be able to fulfill the essential job functions of a deputy sheriff because of an increased risk of physical incapacitation while performing essential duties, such as restraining combative suspects, getting into physical altercations, or chasing suspects. She was concerned that if he became physically incapacitated, he would endanger himself, his partner, or the public.
Dr. Steinmanns Testimony
Skiles appealed Dr. Khannas decision. Defendant sent Skiles to be examined by Dr. Steinmann. Dr. Steinmann examined Skiless X-rays, observed Skiles, palpated his spine, tested his spine for range of motion, and tested his nerve root flexibility, his motor strength, his reflexes, and his sensation. Dr. Steinmann took more X-rays. Dr. Steinmann concluded that Skiles performed well, but observed that his reflexes were not normal. Dr. Steinmann specifically noted that Skiles had some absence of reflex on his right achilles and patella reflexes.
Dr. Steinmann determined that Skiles could not perform as a law enforcement officer for a long period of time because of the history of his back. As a result of three surgeries, six segments of Skiless lower back, from T-11 to L-4 were fused. Skiles had sagittal imbalance, which meant that his weight was cast forward on his hips because of the malalignment of his spine. Thus, it required considerably more muscle strength and endurance to be able to stand upright for a long period of time. Furthermore, in a normal spine, the stresses are spread out over all the vertebrae. In Skiless back, all the stresses were concentrated, so "the L-4, 5 disk space [had to] do the work that used to be shared by six motion segments." The long fusion of six disks put[] Skiles at an "increased risk for accelerated degeneration of the disk below the fusion and just above the fusion because it puts increased stress on the actual segment itself." Skiles already shows some early degenerative changes in his spine. Dr. Steinmann concluded that Skiless lumbar spine would not stand up to the physical demand of being a deputy sheriff over a long period of time, without "at least experiencing a considerably high risk of injury." He stated his concern that Skiles was at a higher risk of injuring himself should he be involved in a serious physical altercation. Dr. Steinmann further concluded that Skiles had "a better than 50% chance of requiring surgical intervention for his lumbar spine within the next 20 years."
Dr. Hubbards Testimony
Dr. Hubbard testified on plaintiffs behalf, not only as a police skills expert, but also a medical expert. Dr. Hubbard disagreed with Dr. Steinmanns conclusion that Skiles would require surgery within 20 years. Dr. Hubbard testified that Skiles had fully recovered from his injury, after his surgeries, and that there was nothing medically that would preclude him from doing police work. Dr. Hubbard testified that he was 100 percent certain that Skiles could perform all the essential duties of a deputy sheriff, as set forth in the POST standards. Specifically, Dr. Hubbard testified that he was confident that Skiles could restrain violent and uncooperative suspects.
However, on cross-examination, Dr. Hubbard admitted that he was not a treating doctor, that he had not performed surgery in two years, and that he currently only worked 12 hours per week evaluating patients. He was not a board-certified orthopedic surgeon; in fact he had failed the board certification examination numerous times. Dr. Hubbard also admitted that he had never been hired by any law enforcement agency for the purpose of evaluating police officer applicants. Dr. Hubbard knew Skiless uncle and performed the examination on Skiles because Skiless uncle had asked him to. Dr. Hubbard did not review Skiless X-rays. He also did not know whether Skiles had degenerative changes in his spine.
Skiless Testimony
Skiles testified that he felt that he had fully recovered from his spinal injury. He attributed his recovery to his surgeries and his fitness routine of doing martial arts, swimming, running, and lifting weights. He did not feel that he had any physical limitations. Ultimately, he unequivocally testified that he did not have a disability that prevented him from performing the duties of a deputy sheriff, and he never requested an accommodation for any disability from defendant.
The Trial Courts Findings
The trial court found that defendant did not discriminate against Skiles because of his physical disability. The court further found that Skiless "posture at the time of his employment medical exams was that he was not in fact permanently disabled." The court noted that Skiles, in essence, "asserted that he had fully mitigated the burst fracture and therefore was physically capable of performing all of the duties of a deputy sheriff." The court also found that no reasonable accommodation was available to accommodate Skiles as a deputy sheriff. The court noted that the only accommodation suggested during the trial was providing a partner for Skiles. However, that was not a reasonable suggestion because of the cost of double staffing a patrolmans duty.
Plaintiff appeals on behalf of Skiles.
ANALYSIS
I. Plaintiff Never Established a Prima Facie Case for Discrimination on Grounds of Physical Disability
The initial issue we must address is whether or not plaintiff established that Skiles had a physical disability, within the meaning of FEHA.
A. "Physical Disability" Defined
The crux of plaintiffs complaint was that defendant discriminated against Skiles by refusing to hire him, "on the basis of a physical disability and/or a perceived physical disability condition," in violation of section 12940, subdivision (a). Section 12940 provides, in relevant part:
"It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
"(a) For an employer, because of the . . . physical disability . . . of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment . . . .
"(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical . . . disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical . . . disability, where the employee, because of his or her physical . . . disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.
"(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform his or her essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations."
Section 12940, subdivisions (1)(a) and (b).
Section 12926, subdivision (k) defines "physical disability" as:
"(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
"(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
"(B) Limits a major life activity. For purposes of this section:
"(i) `Limits shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
"(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
"(iii) `Major life activities shall be broadly construed and includes physical, mental, and social activities and working.
"(2) Any other health impairment not described in paragraph (1) that requires special education or related services.
"(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
"(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
"(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2)."
B. Plaintiff Never Met Its Burden of Proving That Skiles Had a Disability
In its opening brief, plaintiff cites the elements required to show a prima facie case of disability discrimination under FEHA, but fails to explain how it met those elements. "A prima facie case for discrimination on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability. [Citations.]" Thus, "[i]n a case for disability discrimination, the threshold issue is whether the plaintiff has a disability. [Citations.] . . . The plaintiff has the burden to establish he has a disability. [Citation.]"
Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.
Diffey, supra, 84 Cal.App.4th 1031, 1035.
Because plaintiffs complaint alleged that defendant failed to hire him "on the basis of a physical disability [or] a perceived physical disability," plaintiff had the initial burden of establishing that Skiles had a disability. Specifically, plaintiff was required to show that he had a physiological disorder or condition that: (1) affected "one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine"; and (2) limited a major life activity. In this case, the major life activity was working.
Section 12926, subdivision (k)(1)(A) and (B).
Section 12926, subdivision (k)(1)(B)(iii).
"In order to determine whether or not a disability substantially limits a major life activity, the court must examine the effect of the alleged impairment on the life in question. [Citation.]" However, we are not required to make such specific findings relating to the particular disability suffered by Skiles, because plaintiff never established that Skiles suffered from a disability. In fact, Skiles testified that he did not consider himself to be disabled in any way, but rather that he had fully recovered from his spinal injury. He expressly testified that he had no physical limitations after his third surgery and that he had no physical disability that prevented him from doing the job of deputy sheriff. He also testified that, after his third surgery, he worked for several years. He first worked in the stockroom at the Western University of Health Sciences for two years. That job entailed shipping and receiving, delivering equipment, lifting boxes up to 100 pounds and delivering them to various places at the university. He then worked as an investigative technician for the County of Riverside. (The record does not indicate how long he worked in this position.) This job entailed long periods of driving, transporting evidence, serving subpoenas, interviewing victims and witnesses, and ordering reports. Skiles testified that he had no limitations on this job. Thus, by Skiless own assessment, his spinal condition was not an impairment.
Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 627-628, overruled on other grounds in Colmenares v. Braemar Country Club, Inc., supra, 29 Cal.4th 1019, 1031, footnote 6.
See Hobson v. Raychem Corp., supra, 73 Cal.App.4th 614, 628.
Furthermore, Dr. Hubbard testified that he was 100 percent certain that Skiles could perform all the essential duties of a deputy sheriff, as set forth in the POST standards. In other words, at trial, plaintiff consistently took the position that Skiles did not have a physical disability that limited his ability to work.
Similarly, in its opening brief, plaintiff states that, by the time Skiles applied for the position of deputy sheriff, he was fully recovered, "his spine was solidly healed", and that there were no medical restrictions on the type of physical activity or duties he could perform. Plaintiff further asserts that "[a]t all . . . times, including the present, [Skiles] was and is able to perform the essential functions of a Deputy Sheriff Trainee, with or without the provision of reasonable accommodations, and without endangering his health or safety, or the health or safety of others." In other words, plaintiff maintains that Skiles had and has no disability.
Therefore, because plaintiff failed to meet the threshold requirement of establishing that Skiles was limited in his ability to work by any physical condition, plaintiff failed to establish a prima facie case for discrimination on the grounds of physical disability under FEHA.
C. Plaintiff Never Met its Burden of Showing That Defendant Perceived Skiles as Having a Disability
Plaintiff alternatively contends that its claim falls within the scope of FEHA because defendant failed to hire him on the basis of a "perceived physical disability." Under FEHA, a "physical disability" includes "being regarded or treated by the employer or other entity covered by this part as having or having had any physical condition that makes achievement of a major life activity difficult."
Section 12926, subdivision (k)(4).
However, plaintiff never presented any evidence that defendant regarded Skiless spinal condition as a disability.
See Diffey, supra, 84 Cal.App.4th 1031, 1038.
In Diffey, the plaintiff applied for the position of deputy sheriff, but was denied employment because he was colorblind. This court explained that "in order to find a perceived disability, the perception must stem from a false idea about the existence of or the limiting effect of a disability. [Citation.]" Upon review of the record, we could not "find any evidence to support [the plaintiffs] contention that the County regarded his color deficiency as a disability rather than a valid job requirement." One doctor testified that the plaintiff was severely color deficient and that various jobs required the ability to identify colors. That doctor and a police lieutenant testified that the plaintiff "would not be able to perform a range of deputy sheriffs patrol duties, including driving safely in an emergency situation, because of his condition. He could, however, engage in ordinary driving." Another doctor testified that he determined that the plaintiff was medically disqualified for the deputy sheriff position because he could not pass a certain test and meet the POST recommendations on color vision. This court also pointed out that the plaintiff himself testified that he saw himself as "color dumb" but not disabled. "His color deficiency had never affected any aspect of his life except to prevent him from being hired as a sheriffs deputy."
Diffey, supra, 84 Cal.App.4th 1031, 1037.
Diffey, supra, 84 Cal.App.4th 1031, 1038.
Diffey, supra, 84 Cal.App.4th 1031, 1038.
Diffey, supra, 84 Cal.App.4th 1031, 1038.
Diffey, supra, 84 Cal.App.4th 1031, 1038.
Diffey, supra, 84 Cal.App.4th 1031, 1039.
This court concluded that there was no evidence that the County regarded the plaintiff as disabled. "Instead, the County did not find him qualified to be a deputy sheriff. But there [was] no evidence that the Countys treatment of Diffey resulted from myths, fears or stereotypes about color blindness. Nor [was] there evidence that the County regarded [the plaintiffs] major life activity of . . . working as substantially limited by his condition."
Diffey, supra, 84 Cal.App.4th 1031, 1039.
Specifically, with respect to working as a major life activity, this court found that "the evidence established that the County followed POST guidelines used to qualify deputy sheriff applicants. Many cases recognize the unique skills—including physical strength, mobility, and vision—required by police work. [Citations.] The evidence supported a finding that color vision was a valid job requirement for a deputy sheriff. . . . No contrary evidence was presented." Furthermore, this court concluded that "[a] person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer. [Citation.]"
Diffey, supra, 84 Cal.App.4th 1031, 1039.
Diffey supra, 84 Cal.App.4th 1031, 1040, italics added.
In the instant case, there was no evidence that defendant perceived Skiles as disabled. The evidence only showed that defendant did not perceive that plaintiff could perform particular functions of a deputy sheriff. Dr. Khanna testified that, because of Skiless fusion, he had the potential "not to be as flexible as if he had not had a fusion of the vertebrae," and that "a long fusion of six disks [was] going to put him at increased risk for accelerated degeneration of the disk below the fusion and just above the fusion because it put[] increased stress on the actual segment itself." Dr. Khanna further testified that she felt that Skiles had the potential of "being unable to fulfill the essential job functions because of an increased risk of physical incapacitation while performing the essential job functions." She offered examples of situations such as chasing a suspect, restraining a suspect, or a physical altercation. In such situations, Skiles had the possibility of becoming physically incapacitated because of his condition. Skiles would therefore endanger "his partner, himself, or the public." Dr. Khanna testified that her responsibility was to the County and to the public to provide only the most qualified deputy sheriffs who were going to be able to fulfill the essential job functions, without endangering the public at large.
Dr. Steinmann agreed, and also testified that he did not think Skiless lumbar spine "would stand up to the physical demand [of being a deputy sheriff] over a long period of time without at least experiencing a considerably high risk of injury." Dr. Steinmann was concerned with Skiless "sagittal imbalance and the loss of lumbar lordosis," which put "an excessive strain on the lower lumbar spine and render[ed] the L4-5 disc space more at risk of degeneration." Dr. Steinmann also noted that Skiles had a long fusion resting on the L4-5 disc space, which subjected it to early degenerative changes. Dr. Steinmann concluded that Skiles had "a better than 50% chance of requiring surgical intervention for his lumbar spine within the next 20 years." Dr. Steinmann also opined that Skiles was at greater risk of injury to himself if he was involved in a serious physical altercation.
Furthermore, as in Diffey, the evidence here established that defendant followed the POST guidelines, as well as the Medical Screening Manual for California Law Enforcement, in qualifying deputy sheriff applicants. The evidence established that mobility and the ability to restrain violent or uncooperative suspects, under combative circumstances, were valid job requirements for a deputy sheriff.
Thus, Dr. Khanna and Dr. Steinmann only testified that they perceived that Skiles could not perform particular functions of a deputy sheriff. They did not perceive him as having a physical disability that limited him from working. They simply recognized the physical strength and mobility required by police work.
Therefore, plaintiff demonstrated neither an actual nor a perceived disability, within the meaning of FEHA. Because plaintiff failed to establish the threshold requirement that Skiles had a disability or that defendant perceived him as having a disability, plaintiff failed to show that its claim came within the scope of a FEHA claim for discrimination.
In its reply brief, plaintiff argues that defendants reliance on Diffey is misplaced. Plaintiff first points out that Diffeys holding was abrogated by the California Supreme Court in Colmenares v. Braemar Country Club, Inc. to the extent that Diffey held that the federal "substantial limitation" of major life activities test was applicable to FEHA-based claims. Since defendant did not rely upon Diffey for its finding that a physical disability must "substantially" limit a major life activity, the overruling on this point by Colmenares would not affect the instant case.
Colmenares v. Braemar Country Club, Inc., supra, 29 Cal.4th 1019.
Plaintiff then points out that defendant claims that Diffey "remains viable for the proposition that Mr. Skiles could not be deemed disabled, as a matter of law, given that he was unable to perform the essential functions of only one `particular job, i.e., deputy sheriff." Plaintiff then asserts that defendants argument is erroneous because defendant conceded at trial that Skiles was disabled and "there was no evidence proffered on the question of whether or not Mr. Skiles could have performed other jobs." We disagree. Even if defendant did concede, at trial, that Skiles was disabled, there was evidence proffered by Skiles himself that he could perform other jobs. Indeed, Skiles expressly testified that, after his third surgery, he worked for several years. He first worked in the stockroom at the Western University of Health Sciences for two years. He then worked as an investigative technician for the County of Riverside. Again, the evidence shows that Skiles was not limited in his ability to work.
Plaintiff also cites to section 12926.1, which was enacted after the alleged discrimination took place. This statute includes the statement that "`working is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Nothing in the statute indicates that it is to be applied retroactively. Nonetheless, this statute would not affect the instant case, since it simply appears to state that working is a major life activity, regardless of whether the limitation on working implicated a particular position or not. In this case, it did.
By order filed September 10, 2003, we reserved ruling on defendants request to take judicial notice of the legislative history of section 12926.1. We grant defendants request for judicial notice.
Section 12926.1, subdivision (c).
D. Because Plaintiff Failed to Show That Skiles Was Limited in His Ability to Work, We Need Not Address Plaintiffs Contention Regarding Skiless History of Disability
Plaintiff further contends that defendant discriminated against him on the basis of his "history of disability." Section 12926, subdivision (k)(3) includes, in the definition of "physical disability," a person who has a record or history of "a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2)," which is known to the employer. The portion of the statute that would apply to this case states that a person has a disability if he has a history of a condition described in "paragraph (1)." Paragraph 1 states that a physical disability includes a condition that limits a major life activity. As discussed above, plaintiff failed to establish that Skiles had a disability that limited him from working.
E. Plaintiff Failed to Meet Its Burden of Showing That Skiles Was Qualified For the Position
Plaintiff also argues that defendant "failed to carry its burden that [Skiles] is not `qualified to be a Sheriffs Deputy Trainee or Sheriff." However, because plaintiff never met the threshold requirement of establishing that Skiles had a disability, the burden never shifted to defendant to show a lawful reason for its action. Moreover, plaintiff is mistaken as to which party had the burden of proof, as to showing whether or not he was qualified for the position. Defendant did not have the burden to show that Skiles was disqualified. Rather, "plaintiff was required to prove as part of his prima facie case of disability discrimination brought under the FEHA that he was qualified to be hired as a police officer." Plaintiff failed to make that showing.
Gonzales v. MetPath, Inc. (1989) 214 Cal.App.3d 422, 426.
Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 482, italics added.
Whether or not a person is qualified for a job depends upon whether he can perform the essential duties of the job. The only evidence that Skiles presented that he was qualified were Skiless own testimony that he did not have a disability that prevented him from performing the duties of a deputy sheriff, and Dr. Hubbards testimony. Dr. Hubbard testified that he was 100 percent certain that Skiles could perform all the essential duties of a deputy sheriff.
However, Dr. Hubbard admitted that he never read any job description or requirements for a San Bernardino County Deputy Sheriff (i.e., the POST standards), until he was on the witness stand. He personally defined the job of deputy sheriffs as sitting in and getting in and out of cars for 99.9 percent of the time. His opinion was based on his 28 years of experience as a reserve police officer in Compton. Skiles, however, did not apply to be a reserve officer in Compton, but rather a deputy sheriff in San Bernardino County. The essential job functions were set forth in the POST standards, but plaintiff failed to prove that he was qualified for the position under these standards.
Although Dr. Hubbard testified that Skiles was qualified for the position of deputy sheriff in San Bernardino, the trial court simply did not believe him, but rather believed the testimonies of Dr. Khanna and Dr. Steinmann. In its statement of decision, the court stated that it did not find Dr. Hubbards testimony as persuasive as the testimonies of Dr. Khanna and Dr. Steinmann because Dr. Hubbard had no board certification, did not have hospital staff privileges anywhere, had not performed surgery in several years, and had never been employed by police agencies for pre-employment medical examinations of police officer applicants. Dr. Khanna and Dr. Steinmann based their opinions that Skiles could not perform the essential duties of a deputy sheriff, without the risk of injuring himself or others, on the POST standards and the medical screening manual for California law enforcement.
II. The Trial Court Had No Duty to Hold Defendant to Any "Proof Requirements" Because Plaintiff Never Established That Skiles Had a Disability
Although plaintiff never showed that Skiles had a disability, and, in fact, maintains that Skiles was not disabled, plaintiff overlooks its required showing and proceeds to argue that the trial court failed to require defendant to "meet FEHA-required burden of proof standards, much less prove that its explanations for failure to hire were justified and lawful." Plaintiff proceeds to posit several arguments under the following headings: (1) "section 12940 has no liability element using the term `invidious discrimination, but requires a showing of a causal connection to the disability discrimination; (2) "the trial court failed to discuss or render a decision on the alternative theories of perceived disability and/or history of disability definitions"; (3) defendant "failed to carry its burden to prove its exclusion was because of job-related criteria or bona fide occupational qualifications"; and (4) defendant "failed to prove that hiring Skiles would present an imminent and substantial future risk of harm."
"In an employment discrimination case, the employee must first establish a prima facie case showing of wrongful discrimination. If [he] does so, the burden shifts to the employer to show a lawful reason for its action. Then the employee has the burden of proving the proffered justification is mere pretext. [Citation.]" As discussed above, plaintiff never established a prima facie case of discrimination because it never showed that Skiles suffered from a disability. (See ante, § I.) Thus, the predicate claim upon which the rest of plaintiffs arguments rest has not been established. Therefore, we see no need to address the rest of plaintiffs claims.
Gonzales v. MetPath, Inc., supra, 214 Cal.App.3d 422, 426, italics added.
III. Defendant Did Not Have the Burden to Prove That Skiles "Required No Accommodation to Be Properly Evaluated or Tested"
Although plaintiff initially asserts that Skiles had no disability, it then takes the inconsistent position that Skiless disability should have been accommodated. Plaintiff asserts that the FEHA "requires employers to make reasonable accommodation for the known disabilities of applicants to enable them to be tested or evaluated for performance of a positions essential functions, unless doing so would produce undue hardship for the employers operations." Plaintiff further complains that Dr. Khanna and Dr. Steinmann medically disqualified Skiles without further testing, but simply based on his medical history. Plaintiff asserts that "[t]here were testing and training accommodations that could be applied to answer the unanswered and `speculative issues dealing with future risk of harm to a trainee." We reject plaintiffs argument.
Under section 12940, subdivision (m), it is an unlawful employment practice "[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." However, for a failure to accommodate claim, "[t]he plaintiff must . . . establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual." As discussed above, plaintiff failed to establish both of these elements. (See ante, § I.)
Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.
Furthermore, "[i]n general . . . it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed. [Citation.]" At the time he was actually being tested, Skiles never requested an accommodation for any disability.
Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384.
Moreover, Dr. Khanna testified that defendant had "no test putting people with physical history such as [Skiless] under very dangerous and combative circumstances to ascertain whether or not they will come out in a comma [sic] or paralyzed or come out completely, physically intact." Dr. Khanna stated, and we agree that it would not be reasonable — indeed it would be unconscionable, in our view — to subject a candidate to the risk of such dangerous testing.
DISPOSITION
The judgment is affirmed. Defendant shall recover costs on appeal.
We concur: Ramirez, P.J. and Gaut J.