Opinion
A098940.
11-24-2003
CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING, Plaintiff, v. U.S. FOODSERVICE, INC., Defendant and Respondent.
JULIO ZAMORA, Real Party in Interest and Appellant.
The California Department of Fair Employment and Housing (the Department) filed an action against U.S. Foodservices, Inc. (USF) alleging that USF discriminated against its former employee, Julio Zamora (Zamora), because of a disability. The trial court granted USF summary judgment. It also denied Zamoras motion to vacate the judgment.
The Department did not appeal. However, Zamora alleges the judgment must be reversed. USF contends that Zamora lacks standing to appeal and that, in any event, the judgment is proper. We find that Zamora does have standing to appeal. We also find there are triable issues of material fact that require us to reverse the summary judgment.
II. STATEMENT OF FACTS
A. The Complaint
On September 10, 1999, Zamora filed a complaint with the Department in which he alleged that his employer, USF, discriminated against him because of his work-related cervical spine disability, denied him a reasonable accommodation and terminated his employment. Zamora filed an amended complaint on October 1, 1999. Zamora alleged that Dr. Paul F. Clayman determined that Zamora was a "Qualified Injured Worker" and prescribed recommendations and accommodations that would permit Zamora to continue working at his job. Zamora further alleged that Tom Stuart, USFs human resources director, was informed of Claymans findings and recommendations. According to the complaint, on September 10, 1998, Stuart expressly advised Zamora that USF would not accommodate him and terminated his employment.
In September 2000, the Department filed an accusation against USF before the Fair Employment and Housing Commission pursuant to section 12965, subdivision (a) of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12965, subd. (a).) The accusation charged USF with "unlawful employment discrimination on the basis of a disability against JULIO ZAMORA" who was identified as "the Complainant." USF responded by electing, pursuant to section 12989, to have the claims asserted against it adjudicated in a civil action rather than an administrative proceeding.
The FEHA is codified at Government Code section 12900 et seq. Unless otherwise indicated, undesignated statutory references are to the Government Code.
On November 3, 2000, the Department filed a superior court complaint against USF. Zamoras name appeared in the caption of the complaint as the real party in interest. The complaint alleged that USF violated section 12900 et seq. by discriminating against Zamora on the basis of a disability. The Department incorporated Zamoras October 1999 amended complaint and the September 2000 accusation into its complaint. According to the Departments complaint, Zamora was employed by USF as a truck driver when he developed job-related cervical and lower back conditions and sought relief under the workers compensation law. The physician who evaluated Zamora found that his condition was partially the result of a physical disability and that it could worsen if Zamora engaged in repeated motion while performing his job as a truck driver. The Department alleged that, "rather than engaging in the interactive process necessary for accommodating [Zamoras] disability in his current job, [USF] abruptly elected to terminate him from his position under the pretext that no reasonable accommodation was available."
The Department alleged separate causes of action for discrimination based on (1) disparate treatment because of Zamoras physical disability or perceived physical disability, (2) failure to reasonably accommodate Zamoras disability, and (3) failure to maintain an effective disability discrimination prevention policy. The Department also alleged a fourth cause of action for injunctive relief based on the claim that USF deprived Zamora and "other persons" of their right to hold employment without discrimination. In its prayer for relief, the Department sought: (1) an order reinstating Zamora to his original position as a truck driver or, in the alternative, requiring USF to pay Zamora reasonable front pay and other benefits, (2) an order compelling USF to pay Zamora actual damages and damages for pain and suffering, (3) punitive damages, and (4) an order enjoining USF from discriminating against its employees on the basis of a disability.
B. Summary Judgment Proceedings
On October 3, 2001, USF filed a motion for summary judgment or summary adjudication of issues. Erroneously referring to Zamora as the plaintiff, USF argued that Zamoras discrimination claims failed as a matter of law because (1) Zamora did not suffer from a disability, (2) USF did not perceive that Zamora suffered from a disability, and (3) Zamora could not perform the essential functions of his former job as a truck driver. In its opposition to the summary judgment motion, the Department argued USFs three factual contentions were disputed.
On November 2, 2001, a hearing on USFs motion was held before the Honorable Phrasel L. Shelton. At the hearing the court indicated it would deny USF summary judgment because its motion ignored the Departments fourth cause of action alleging discrimination against Zamora and other employees. However, the court stated it would grant USFs request for summary adjudication of the three factual issues (set forth above) that were addressed in its moving papers. In response to the Departments request for a ruling on the parties evidentiary objections, the court stated: "The court considered all the relevant evidence, so if it was nonadmissible, we didnt consider it."
In an order dated November 20, 2001 (the November 20 order), the court denied USFs motion for summary judgment but granted, in part, the motion for summary adjudication of issues by making the following factual findings: (1) Zamora "does not suffer from an actual `physical disability as defined by the [FEHA]," (2) USF "did not `perceive Zamora as suffering from a `physical disability as defined by the FEHA at the time of the employment decision at issue," and (3) "Zamora was not `otherwise qualified to perform the essential functions of his former delivery driver position due to his specific work restriction limiting his ability to engage in repetitive overhead heavy lifting."
On February 6, 2002, USF filed a "renewed" motion for summary judgment or, alternatively, summary adjudication of issues. USF argued that the adjudicated facts set forth in the November 20 order precluded the Department from stating a prima facie case of discrimination based on any of the theories set forth in its complaint. USF further argued that the fourth cause of action for injunctive relief failed as a matter of law because the Department could not seek injunctive relief on behalf of unspecified "others" absent a finding that Zamoras rights had been violated.
The Department opposed USFs renewed motion. It argued the November 20 order should be set aside pursuant to section 437c of the Code of Civil Procedure (section 437c) because the trial court refused to identify the evidentiary facts it relied on to support its ruling. The Department also requested that the court treat the renewed motion as a motion for reconsideration and that it reconsider the entire matter sua sponte. The Department argued that triable issues of material fact precluded summary judgment and/or summary adjudication of any cause of action. To support this argument, the Department submitted additional evidence which had not accompanied its original opposition.
A hearing on USFs renewed motion was held on March 6, 2002, before the Honorable George A. Miram. On March 25, 2002, the court filed an order granting USF summary judgment on the ground that there were no triable issues of material fact in light of the adjudicated facts set forth in the November 20 order. The March 25 order further stated that the court "relied exclusively on the adjudicated facts set forth in the [November 20 order], and thus has relied exclusively upon relevant and admissible evidence in making this Order."
C. Zamoras Motion to Vacate
On April 10, 2002, Zamora, who was represented by his own attorney, filed a motion to vacate the summary judgment. Zamora based his motion on section 663 of the Code of Civil Procedure (section 663) as well as on section 437c and the inherent powers of the trial court. Zamora argued the trial court had made procedural and factual determinations that were inconsistent with the requirement that summary judgment motions be handled in the light most favorable to the non-moving party. He requested that the prior orders be set aside and that a trial on the merits occur.
On September 6, 2002, the court filed an order denying Zamoras motion to vacate on the following grounds: (1) Zamora was not a "party" within the meaning of section 437c and made an inadequate showing to justify relief under that provision; (2) section 663 cannot be used to vacate a judgment and order a new trial; and (3) Zamora failed to properly intervene in the action.
III. STANDING
Noting that standing to appeal is a jurisdictional requirement (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295 (Marsh)), USF questions whether Zamora has standing to appeal this judgment.
Section 902 of the Code of Civil Procedure states, in relevant part, that "[a]ny party aggrieved may appeal" from an adverse judgment. Thus, as a general rule, a person has standing to appeal if he or she is (1) a party of record, and (2) sufficiently aggrieved by the judgment or order. (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 736-737 (County of Alameda); Marsh, supra, 43 Cal.App.4th at p. 295.) "A party of record is a person named as a party to the proceedings or one who takes appropriate steps to become a party of record in the proceedings." (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) "To be sufficiently `aggrieved to qualify for appeal standing, a persons rights or interests must be injuriously affected by the judgment or order, and those rights or interests `"`must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment . . . ."" (Marsh, supra, 43 Cal.App.4th at p. 295, quoting County of Alameda, supra, 5 Cal.3d at p. 737.) Two caveats expand the scope of this standing rule.
First, a nonparty who is aggrieved by a judgment or order can become a party of record and obtain a right to appeal by filing a trial court motion challenging the validity of the judgment or order. (County of Alameda, supra, 5 Cal.3d at p. 736; Marsh, supra, 43 Cal.App.4th at p. 295; Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 15-18; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1342-1343.) Second, a nonparty who never became a party of record in the trial court nevertheless has standing to appeal a judgment or order that has a res judicata effect on him or her. (Marsh, supra, 43 Cal.App.4th at p. 295; Leoke v. County of San Bernardino (1967) 249 Cal.App.2d 767, 771.)
In the present case, USF does not dispute that Zamora is aggrieved by this judgment. Instead, it contends that Zamora lacks standing because he never became a party of record and he has failed to establish that this judgment will have a res judicata effect on him. We reject both of these contentions.
As noted in our factual summary, Zamora filed a trial court motion to vacate the summary judgment. The record strongly suggests that Zamora took that action in order to obtain standing to appeal. However, USF contends Zamoras motion did not make him a party because Zamora erroneously relied on section 663. To support this argument, USF cites Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203 (Forman).
Section 663 states: "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
Forman holds that section 663 does not authorize a motion to vacate a summary judgment because the procedure contemplated by that statute requires the court to enter a different judgment but does not authorize it to order a trial. (Forman, supra, 173 Cal.App.3d at p. 203.) However, Forman does not hold that a nonparty who mistakenly relies on section 663 lacks standing to appeal. In fact, appellate standing was not an issue in that case at all. If we look for indirect guidance from Forman, we find it pertinent that the Forman court did not simply disregard the mislabeled section 663 motion in that case but instead construed it as a motion for new trial or a nonstatutory motion to vacate. (Ibid.) Thus, Forman does not preclude Zamora from establishing that he filed a trial court motion challenging the validity of the judgment in this case.
USF does not articulate why Zamoras misplaced reliance on section 663 is relevant to the issue of appellate standing. Nor does it acknowledge that section 663 was not the only basis for Zamoras motion to vacate. Apparently, USF presumes that a section 663 motion is the exclusive method by which a nonparty aggrieved by an order or judgment can acquire party-of-record status. Our own research indicates that an aggrieved nonparty can become a party of record by filing a nonstatutory motion to vacate a judgment (Plaza Hollister Ltd. Partnership v. County of San Benito, supra, 72 Cal.App.4th at pp. 15-18), or by filing a motion for judgment notwithstanding the verdict or a motion for a new trial. (Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th at pp. 1341-1343.) Therefore, USFs contention that Zamora erroneously relied on section 663 is simply not relevant to our standing analysis.
Furthermore, even if Zamora did not become a party of record in the trial court, he has standing to appeal a judgment that would have a res judicata effect on him. "Res judicata, and its component of collateral estoppel, foreclose relitigation of a cause of action or issue that was determined in a prior case, involving the same party or one in privity to it, and which ended in a final judgment on the merits. [Citation.]" (Victa v. Merle Norman Cosmetics, Inc. (1993) 19 Cal.App.4th 454, 459 (Victa).) USF contends that "Zamoras mere conclusion that the judgment has a `res judicata affect [sic] on his interests is not self-evident." Specifically, USF questions whether there is privity between the Department and Zamora. Frankly, we find this contention rather remarkable.
"The concept of privity for the purposes of res judicata or collateral estoppel refers `to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with the other as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is "sufficiently close" so as to justify application of the doctrine of collateral estoppel. [Citations.] [Citations.] `"This requirement of identity of parties or privity is a requirement of due process of law." [Citation.] "Due process requires that the nonparty have had an identity or community of interest with, and adequate representation by, the . . . party in the first action. [Citations.] The circumstances must also have been such that the nonparty should reasonably have expected to be bound by the prior adjudication. . . ." [Citations.]" (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1069-1070.)
Thus, the privity requirement consists of three essential components — identity of interests, adequacy of representation, and expectation to be bound. All three components are present here. First, this action derived directly and exclusively from the personal complaint that Zamora made to the Department about USF. The Department formally named Zamora as the real party in interest, it alleged causes of action based exclusively on USFs treatment of Zamora, and it sought relief that would be awarded directly to Zamora. Thus, the interests of the Department and Zamora were identical. Second, in bringing this action, the Department was obligated by statute to "represent[ the] aggrieved persons interests" and to "comply with the Rules of Professional Conduct of the State Bar of California." (§ 12989, subd. (c).) Nothing in the record raises any question as to the adequacy of the Departments representation of Zamoras interests. Finally, Zamora has conceded both by his conduct in the lower court and in his appellate brief that he expects to be bound by the judgment in this case.
Relying on Victa, supra, 19 Cal.App.4th 454, USF argues that "not every individual represented by a government agency charged with protecting rights to employment free from discrimination is in privity with the agency for res judicata purposes." Victa held that a plaintiff alleging state law employment discrimination claims against her former employer was not bound by a prior injunctive consent judgment obtained by the EEOC in a federal discrimination case against that employer. (Id. at pp. 460-468.) The Victa court found that the plaintiff was not a party to the EEOC case and was not in privity with the EEOC in that case. However, the court cautioned that its "decision does not stem from or signify a general disavowal of the EEOCs capacity to stand in privity with the claimant in an ADEA case. Rather it derives from the particular facts of the case at hand, which in our view compel the conclusion reached." (Id. at p. 468.) The "particular facts" of Victa were very different than the facts before us.
The Victa plaintiff filed her own state court complaint before the EEOC initiated a federal action against her employer. (Victa, supra, 19 Cal.App.4th. at p. 457.) And, although the EEOC asserted some claims on behalf of the Victa plaintiff, it did not have standing to assert her state law claims. (Id. at p. 463.) In contrast to Victa, the present action was litigated solely on behalf of Zamora. The Department was expressly authorized by statute to undertake a group or class investigation of Zamoras claims and to file a group or class accusation and complaint against USF. (§§ 12962, 12965.) It elected not to follow that course. Indeed, USF relied on this fact to defeat the Departments fourth cause of action which sought relief on behalf of Zamora and unspecified others.
The Victa court found that the EEOC did not act as the plaintiffs representative in the federal action because, among other things, it entered into a consent judgment which dispensed with the plaintiffs particular claims in exchange for the employers submission to a general injunction. (Victa, supra, 19 Cal.App.4th. at p. 468.) By contrast, in the present case, the Department was Zamoras representative in the lower court. After USF elected to defend the claims against it in superior court, the Department was authorized to file this action "in its name or on behalf of the aggrieved person as a real party in interest." (§ 12989, subd. (c).) It chose the latter option and formally identified Zamora as the real party in interest in this case. Also, in contrast to Victa, there is no evidence before us that the Department pursued any interest that conflicted with Zamoras claims. When, as here, an agency is vested with authority to litigate a claim and its interests are so similar to the interests of a nonparty that it can fairly be called the representative of the nonparty, then privity is properly found. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn., supra, 60 Cal.App.4th at p. 1070)
Finally, the Victa plaintiff "had no litigative participation or control in the EEOC case [and h]er posture on the sidelines — more aptly, outside the stadium — refute[d] the notion that she reasonably should have anticipated being bound by it." (Victa, supra, 19 Cal.App.4th at p. 468.) By contrast, the record before us indicates that Zamora actively participated in and even controlled the lower court action to some extent. For example, after USF renewed its motion for summary judgment, the Department sent USF notice that it would oppose the motion because Zamora had expressed a desire to appeal the prior adverse ruling and the Department intended to preserve Zamoras appellate rights. In light of Zamoras role in the lower court proceedings and his conduct in this court, Zamoras expectation that he will be bound by this judgment is undeniable.
To summarize, Zamora became a party of record by filing a trial court motion to vacate the summary judgment. Even if the motion to vacate was somehow deficient, the judgment under review has a res judicata effect on Zamora. Therefore, Zamora has standing to appeal.
IV. SUMMARY JUDGMENT
A. Standard of Review
"Summary judgment is properly granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. [Citation.] A defendant seeking summary judgment bears the initial burden of proving the `cause of action has no merit by showing that one or more elements of plaintiffs cause of action cannot be established or there is a complete defense. [Citations.] Once the defendants burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. [Citations.]
"`This court reviews de novo the trial courts decision to grant summary judgment and we are not bound by the trial courts stated reasons or rationales. [Citation.] [Citation.] We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show `"specific facts," and cannot rely upon the allegations of the pleadings. [Citation.] At the same time, we must bear in mind that, `"[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." [Citations.]" (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386.)
B. The Trial Courts Ruling
1. Introduction
In order to conduct a meaningful review of the judgment in this case, we must first address certain problems that arose because of the trial courts failure to comply with the procedures governing summary judgment motions that are set forth in section 437c. Section 437c, subdivision (f)(1), states that "[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." The trial courts November 20 order granted USF summary adjudication but did not, contrary to the statute, completely dispose of any cause of action, affirmative defense, claim for damages or issue of duty. Section 437c, subdivision (g), requires the trial court to, among other things, (1) specify the reasons for its determination that summary judgment should be granted or denied, (2) refer to the evidence which supports its determination that a triable issue of material fact does or does not exist, and (3) "state its reasons for any other determination." The November 20 order does not satisfy any of these requirements. It does not explain how or why the court concluded there were three material undisputed facts or identify the evidence the court relied on to make its determination. In addition, the November 20 order denied the Departments request for a continuance without stating any reason for that denial.
The confusion resulting from the trial courts failure to comply with section 437c led to the filing of USFs second "renewed" motion for summary judgment or adjudication. Zamora contends that renewed motion violated section 437c, subdivision (f)(2). Section 437c, subdivision (f)(2), states that "a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." While Zamora is correct that USFs renewed motion was based on "issues asserted in a prior motion," it did not violate section 437c, subdivision (f)(2), because the prior motion was not "denied by the court." Rather the court disposed of the prior motion by granting summary adjudication of the same three issues which USF consistently maintained were dispositive of the entire action. Nevertheless, it is clear to us that section 437c does not contemplate the filing of a renewed motion like the one filed by USF in this case. The motion was necessary solely because of the anomalous situation caused by the trial courts failure to comply with section 437c to begin with by, among other things, granting USFs first motion without disposing of any cause of action.
In contrast to the November 20 order, the March 25 order granting USFs renewed motion properly disposed of causes of action rather than issues. The court also specified its reasons by finding that the three adjudicated facts set forth in the November 20 order precluded the Department from proving its claims. However, because the March 25 order incorporated and relied on the findings set forth in the November 20 order, it also failed to "specifically refer to the evidence" in the record which indicates that "no triable issue exists." (See § 437c, subd. (g).)
The trial courts failure to follow proper summary judgment procedure and the confusion resulting therefrom gave rise to numerous disputes between the parties to this appeal. We can safely ignore many of these disputes because of our de novo standard of review. For example, the parties disagree as to whether the trial court properly defined "physical disability" as that term was used in the FEHA at the time the alleged discrimination occurred. We need not resolve this disagreement since our inquiry on appeal is whether, under the proper test, the evidence before us creates a triable issue as to whether Zamora suffered from a physical disability.
At the time of the summary judgment proceedings, several appellate courts had held (and USF argued) that the version of the FEHA that was in effect when Zamoras claims arose required a plaintiff alleging disability discrimination to prove the his or her condition substantially limited his or her ability to participate in a major life activity. (See, e.g., Diffey v. Riverside County Sheriffs Dept. (2000) 84 Cal.App.4th 1031, 1035-1036, disapproved by Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031 (Colmenares).) Recently, our Supreme Court rejected this view and held that a disease or condition qualifies as a disability under the relevant version of the FEHA if it limits (as opposed to substantially limits as required under federal law) the plaintiffs ability to participate in a major life activity. (Colmenares, supra, 29 Cal.4th at pp. 1031-1032.)
However, in order to determine whether there is a triable issue as to this or some other material fact, we must determine what evidence is properly before us. The lower court repeatedly failed to make comprehensible rulings regarding evidentiary issues raised by the parties. For example, the Department sought a continuance of the first summary judgment hearing in order to obtain additional discovery and to cure USFs evidentiary objection to a crucial medical report. The court denied the continuance without explanation and never ruled as to the admissibility of the medical report. Nor did it make rulings on a multitude of evidentiary objections advanced by the parties below.
As a result, Zamora assumes that evidentiary rulings were unfavorable to him and now argues the trial court disregarded relevant evidence when making its rulings. On the other hand, USF argues that evidence which was not stricken from the record below should nevertheless be disregarded by this court because it was not properly before the trial court. The trial court did not exclude or strike any evidence from the record below. Therefore, we will consider all of the evidence in the record before us in order to determine whether there are triable issues of fact precluding summary judgment in this case.
USF argues that the Department acted improperly by submitting additional evidence in support of its opposition to USFs second summary judgment motion without making its own motion for reconsideration. USF asks us to disregard this evidence because it was not before the court when it made the dispositive November 20 order. We previously denied USFs motion to strike this evidence from the appellate record.
2. Issues presented
USF was charged with violating the FEHA by discriminating against Zamora because of a physical disability. Specifically, the Department alleged that USF violated section 12940, subdivision (a), by terminating Zamoras employment or otherwise discriminated against him in the terms, conditions or privileges of employment because of a physical or perceived physical disability. It also alleged that USF violated section 12940, subdivision (i) (now subd. (k)), by failing to take all reasonable steps necessary to prevent discrimination against Zamora from occurring. Finally, the Department alleged that USF violated section 12940, subdivision (k) (now subd. (m)), because it failed to reasonably accommodate Zamoras physical disability.
"The [FEHA] prohibits employment discrimination based on a physical disability. [Citations.]" (Colmenares, supra, 29 Cal.4th at p. 1022.) Under the FEHA, an employee has a "physical disability" if he has an actual physical condition that falls within the statutory definition or if he is regarded or treated by the employer as having such a condition. (§ 12926.) However, the FEHA does not prohibit an employer from discharging a disabled employee who is unable to or cannot safely perform "essential duties even with reasonable accommodations." (§ 12940, subd. (a)(1).)
Thus, to establish a prima facie case of employment discrimination against USF based on its treatment of Zamora, the Department would have to show that Zamora (1) had an actual physical disability or was regarded by USF as having a disability, (2) could safely perform the essential duties of his job with reasonable accommodations, and (3) was subjected to an adverse employment action because of his disability or perceived disability. (See, e.g., Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255.)
As noted above, the Department also alleged USF violated the FEHA by failing to reasonably accommodate Zamoras disability. A failure-to-accommodate claim is distinct from a discrimination claim and has different elements. (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 256; Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360-361 & fn. 4.) The elements of a prima facie case of failure to accommodate include proof of (1) a disability covered by the FEHA, and (2) the employers failure to reasonably accommodate the plaintiffs disability. (Ibid.) There is conflicting authority as to whether proof of ability to perform essential job functions is an element of this distinct claim. (Ibid.)
Our resolution of other dispositive issues makes it unnecessary for us to resolve this one.
USF contends summary judgment was properly granted because it produced undisputed evidence establishing that (1) Zamora did not have an actual disability, (2) USF did not perceive Zamora as suffering from a physical disability, and (3) Zamora could not perform an essential job function. We will separately address these three factual contentions.
3. Evidence of an actual disability
When the discriminatory conduct alleged in this case occurred, the FEHA defined physical disability as "any physiological disease, disorder [or] condition" that affects certain body systems, including the musculoskeletal system, and "[l]imits an individuals ability to participate in major life activities." (§ 12926, former subd. (k), Stats. 1992, ch. 913, § 21.3., pp. 4306-4308 (former subd. (k)).) A party seeking to establish a physical disability under former subdivision (k) has to show: "(1) a physiological disease or condition affecting a body system; and (2) the disease or condition limited . . . the plaintiffs ability to participate in major life activities." (Colmenares, supra, 29 Cal.4th at pp. 1031-1032.) A condition "`limits a major life activity if it makes the achievement of the activity `difficult." (Id. at pp. 1025, 1027.)
Former subdivision (k) stated, in relevant part:
"(k) `Physical disability includes, but is not limited to, all of the following:
"(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 an individuals ability to participate in major life activities.
"(2) Any other health impairment not described in paragraph (1) that requires special education or related services.
"(3) Being regarded as having or having had a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2)." (Stats. 1992, ch. 913, § 21.3, pp. 4306-4308.)
USF maintains that it established that the Department could not show that Zamoras condition satisfied these requirements. According to USF, the only major life activity allegedly limited by Zamoras back condition was his ability to work. USF further contends that it produced evidence that established, as a matter of law, Zamora was not limited in his ability to work.
Contrary to USFs contention, ability to work was not the only major life activity allegedly affected by Zamoras physical condition. The Department alleged that Zamora was diagnosed with medical conditions that limited his "ability to participate in major life activities, including but not limited to his work." (Italics added.) The Department produced evidence to support this allegation in the form of Zamoras declaration which described the various ways that his back injuries and physical impairments limited his abilities to engage in a variety of activities.
In any event, we are not persuaded that the evidence USF produced in support of its motion precluded the Department from establishing that Zamora was limited in his ability to work. USF relies on selective excerpts from Zamoras deposition testimony, which it characterizes as a "judicial admission" that Zamoras ability to work was not limited by his back condition. For example, during Zamoras deposition, USFs counsel inquired whether Zamora believed he was "able to perform" all of his job duties throughout the time he was employed by USF. Zamora responded that he was. Zamora further testified that when he last worked for USF he was working every day and he was doing fine. USF also relies on Zamoras testimony that, at the time his deposition was taken, he was working as a truck driver for a different employer and his job duties were essentially the same as his prior delivery jobs. When asked whether he had any difficulty performing his current job, Zamora responded: "Going on 20 years with a perfect record. I got a safe — going on my second year of safety award. Drive with pride, excuse to the side. Thats what they say." Defense counsel then inquired whether "that mean[s] you dont have any problems?" Zamora testified that he was not aware of any problems. He also confirmed that he personally felt that physically he could do his job.
This particular testimony is misleading. When read in context, it seems clear to us that Zamora was testifying that he did not believe his employer had any problems with his work, not that he never experienced back problems while working.
USF contends this testimony establishes that, as a matter of law, Zamora is not now and never has been limited in his ability to perform his job. The isolated, out-of-context testimony upon which USF relies may be relevant to support the argument that Zamoras back problems did not limit his ability to work. However, when viewed as a whole, Zamoras deposition testimony raises at least a triable issue of fact as to whether he was disabled when he was removed from his job by USF.
For example, USF ignores the fact that, although Zamora testified that he "[n]ever had a problem with my job[,]" he went on to explain that "[e]ven if I hurt, I still did the job." Zamora also testified that he did not recall what his medical condition was when USF terminated his employment but he did recall that, during the time he worked for USF, he had a problem getting medical attention and therapy when he needed it. Further, when asked to recall events relating to his departure from USF, Zamora responded: "I dont recall. I was hurt. I was in pain. I was looking for a job to feed my family. [¶] Understand, I have two children. They need to eat. I have a big house. Theyre in a private school. If you have any idea what a private school costs, you know I got no time to go out there and apply for Welfare. . . ."
It appears USF has simply ignored testimony which does not fit its theory. For example, Zamora testified that, at the time his deposition was taken, he was able to engage in the day-to-day lifting and carrying required by his profession but he also stated: "Now, if I get hurt or I pull a muscle or something, thats normal. Thats only because its just too much weight. Im — Im doing too much that my body says I can do. [¶] But Im not a crippled, I can still work. You know. Nothing that a bath cant cure. Some liniment. I mean, you know, my God." Zamora also stated: "Ill stay home on a weekend and soak and then try to get some therapy. If I cant get it, its not going to kill me. Its not going to prevent me from working, you know."
Even if Zamoras deposition testimony satisfied USFs initial burden on summary judgment, other evidence in the record before us creates a triable issue of fact as to whether Zamora suffered from an actual physical disability. This record contains an Orthopedic Qualified Medical Evaluation (QME) of Zamora that was conducted by Dr. Paul F. Clayman. Clayman prepared the July 28, 1998, QME after USF disputed a claim by Zamora that he suffered a series of musculoskeletal injuries while working for USF. As part of his evaluation, Clayman reviewed and summarized extensive records regarding several injuries to Zamoras neck and spinal column that he allegedly incurred while working for USF. Clayman reported, among other things, that Zamora was previously diagnosed with a partial permanent disability because of his musculoskeletal condition resulting from these work-related injuries.
Clayman also personally examined Zamora, diagnosed his condition and offered treatment recommendations. Clayman found that Zamora suffers from (1) chronic cervical spondylitis, (2) chronic recurrent low back pain superimposed on degenerative disc disease, and (3) exogenous obesity with generalized deconditioning of the musculoskeletal system. Clayman recommended that Zamora receive a "prophylactic disability rating" with respect to his cervical spine. According to Clayman, "a prophylactic disability of no heavy or repetitive working at shoulder levels and above is a reasonable consideration based on the history and with the intent of avoiding aggravation, returning to the health-care system, Temporary Total Disability, and further elevation of his current prophylactic disability." Clayman also stated that Zamoras "low back had been granted a disability in the past" and that "remains appropriate and should remain as a prophylactic disability." Clayman noted there was some evidence of improvement of the low back muscle but "not enough to eliminate all factors of disability, since he potentially is at risk for re-injury if exposed to levels beyond the disabilities that he had been previously granted." Claymans report includes a "Qualified or Agreed Medical Evaluators Findings Summary Form." This summary states, among other things, that Zamora has a "permanent disability" and that he can return to his "usual job" with restrictions.
The QME also described a period of time during which Zamoras symptoms and pain in his lower back and neck significantly improved. During that time, Zamora had been assigned by USF to the less physically demanding day shift and was permitted to use an automatic lift gate while making deliveries. Clayman expressly found that these changes in Zamoras working conditions improved his physical condition. However, Clayman also noted that USF took the lift gate away after Zamora filed a grievance regarding a workers compensation claim. Clayman advised that the employers action was not "a positive step" and that it could be "setting up Mr. Zamora for another aggravating event and re-injury." Clayman cautioned that Zamoras significant history of musculoligamentous strains and sprains, his degenerative disc disease in his neck and low back and his excess body weight made him "predisposed to recurrent episodes of these types of injuries if he continues to be exposed to levels of work beyond the intrinsic capacity of his musculoskeletal system." Clayman also observed that Zamora appeared to be highly motivated, that he took pride in his work and had a tremendous sense of responsibility to his family and, for these reasons, had continued to work in spite of the physical problems he had developed. Clayman advised that Zamoras strong work ethic "may predispose him to re-injury unless his employer is willing to comply with the reasonable accommodations that have been extended to him over the last few months."
Other evidence, discussed later in this opinion, indicates that Zamora had been temporarily assigned not to a day shift, but to the night shift, which required less repetitive overhead heavy lifting.
Dr. Clayman concluded that "[i]f modifications were provided (such as the ergonomic-designed air cushioned seat; electric lift gates; proper lifting assistance devices; and minimizing of the repetitive heavy lifting), he could continue working in his current job without need of vocational rehabilitation." Clayman subsequently modified this conclusion to propose a "minimizing of repetitive overhead heavy lifting," instead of a "minimizing of repetitive heavy lifting."
The QME is evidence that Zamora suffered from an actual physical disability at the time of the adverse employment action alleged by the Department in this case. It reflects that Zamora was diagnosed with a physical disability by more than one doctor during the relevant time period. It also describes the physical problems and limitations that Zamora experienced while working at USF. The QME is also evidence that Zamoras actual job performance did not reflect the fact that his back problems limited his ability to work because Zamora was willing to suffer the consequences of ignoring his limitations in order to keep his job.
4. Evidence USF regarded Zamora as having a physical disability
As noted earlier, the FEHA defines physical disability to include a condition that is regarded by the employer as a physical disability. (§ 12926, former subd. (k)(1)(3).) The QME summarized above is probative of USFs perception of Zamora at the time the adverse employment action was taken. It indicates that USF was aware of physical problems Zamora was experiencing and that USF punished Zamora in the past because he filed a grievance relating to his work-injury claim. From such evidence, one could infer that USF permanently changed Zamoras employment status because it perceived Zamora as suffering from a physical disability that USF simply did not want to have to accommodate.
This record also contains undisputed evidence that USF used the QME to justify the adverse employment action it took against Zamora. Tom Stuart was USFs vice president of human resources during the relevant time period. In his declaration, Stuart admitted that he received a copy of Zamoras QME on September 10, 1998. According to Stuart, the QME "outlined various minor medical issues and imposed a specific work restriction limiting `heavy or repetitive working at shoulder levels and above" and also "required `minimizing of the repetitive heavy lifting required in the delivery driver position." Stuart acknowledged that the QME caused him to convene a committee to "discuss how [USF] should proceed" and that he advised the committee that "the ability to lift and stack . . . at or above shoulder level is essential to the position." According to Stuart, the committee decided that Zamora should be placed on a "leave of absence until the doctor lifted his work restriction or another position became available." Stuart stated that he conveyed this decision to Zamora that same day.
There was conflicting evidence as to whether USF placed Zamora on a leave of absence or terminated his employment.
The Stuart declaration establishes that USF received the QME and that it changed Zamoras employment status because of the contents of that report. Since the QME is evidence that Zamora suffered from an actual disability, USFs admitted reliance on that document is evidence that USF perceived Zamora as suffering from a physical disability. Although USF concedes that its decision to change Zamoras employment status was based on the QME, it argues that Stuarts testimony actually proves that USF did not regard Zamora as physically disabled. USF contends this evidence proves that USF changed Zamoras employment status because of a work restriction imposed by a doctor and not because of a perceived disability. The distinction USF draws between a work restriction and a physical disability is utterly illusory. The restriction was imposed because of a diagnosis that Zamora was physically disabled. USF cannot reasonably contend the restriction was separable from the disability finding to which it related. Indeed, USFs assistant general counsel, Lauren Harris, who participated in the decision to remove Zamora from his job, conceded in her declaration that "I understood that these work restrictions would raise issues of reasonable accommodation under both state and federal law." Thus, the concession that USF changed Zamoras employment status because of the QME raises a triable issue of fact as to whether it perceived Zamora as physically disabled.
USF contends 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." (Quoting Diffey v. Riverside County Sheriffs Department, supra, 84 Cal.App.4th at p. 1037.) And, USF contends, undisputed evidence shows that USF did not have any false ideas about Zamora. First, the rule USF invokes, that the employer must harbor a false perception about the effects of a disability, applies to a disability claim under the federal American With Disabilities Act. (Ibid.) Second, even if this rule is relevant to Zamoras FEHA claim, USF has not established that, as a matter of law, it harbored no false perceptions about Zamoras condition.
USF repeatedly argues that it should not be punished for following doctors orders. Although USF can find isolated statements in the QME to support the extreme position it chose to take, the ultimate conclusion set forth in that report was that Zamora could return to work with certain restrictions. Further, after Dr. Clayman learned that USF terminated Zamora because of the QME, he wrote a follow-up letter dated September 26, 1998, in which he modified language in the QME and clarified that the restriction he proposed was to minimize repetitive overhead heavy lifting, not to eliminate it. Clayman also stated that "[i]t was not my intent for [Zamora] to be withdrawn from his current job. In fact, I was trying to be cautious of my language out of my concern that this action might occur. I believe his employer has overreacted and interpreted my opinion too narrowly." Stuart acknowledged that his committee received Dr. Claymans letter of clarification but declined to reconsider its decision. This evidence precludes USF from establishing that it was simply following doctors orders and that it did not have any misperception about Zamoras ability to do his job.
5. Essential job function requirement
USF contends that, even if Zamora suffered from a physical disability, actual or perceived, summary judgment was properly granted because USF established that Zamoras specific work restriction limited his ability to engage in repetitive overhead heavy lifting which was an essential job function. This argument, which proved successful in the trial court, misstates the relevant inquiry. The FEHA makes it unlawful to discharge an employee because of a physical disability unless the person cannot perform his or her essential duties even with reasonable accommodations. (§ 12940; Sargent v. Litton Systems, Inc. (1994) 841 F.Supp. 956, 960.) Thus, to obtain summary judgment on this ground, USF would have to show that repetitive overhead heavy lifting was an essential function of Zamoras job and that Zamora was unable to perform that function even with reasonable accommodations.
USF attempted to show that repetitive overhead heavy lifting was an essential function of Zamoras job through the declarations of Harris, its assistant general counsel, and Stuart, its vice president of human resources. While the opinions of its managers are relevant to explain USFs conduct, the record does not establish that either of these individuals had any personal first-hand knowledge about the duties Zamora performed.
USF also relied on a four-page document it refers to as a "functional job description for the USF delivery driver position." This undated document prepared by USF purports to graph the physical demands of four positions — the truck driver, the shuttle driver, the loader/hostler, and the short line driver. For example, this chart indicates that lifting and carrying items as heavy as 65 pounds is a frequent (34-66 percent) physical demand of the truck-driver position, but is not a physical demand of the short-line driver position. This functional job description is of limited evidentiary value because of its conclusory nature and the absence of any indication as to when or why the document was prepared. Further, it is unclear from this record how the four allegedly distinct driver positions relate to each other or to Zamora. For example, there is evidence that at some point, Zamora worked as a loader/hostler. The functional job description states that lifting and carrying is only an occasional (1-33%) physical demand of the loader/hostler position.
USF also submitted a document called a "Job Analysis." This analysis was prepared for USF by a risk management company for an unrelated workers compensation matter in November 1986 in order to "determine the physical activities required of a Driver." This document states that the employee "continuously" lifts, carries and pushes and pulls heavy boxes. The job analysis is of limited relevance since it was prepared years before the relevant incident and apparently during the course of litigation. We also note that this analysis is apparently inconsistent with the functional job description to the extent it indicates that there is a single "driver" position.
Even if we assume that repetitive overhead heavy lifting was an essential job function, USF failed to establish that Zamora could not perform that function with reasonable accommodations. On appeal, USF pays too little attention to this requirement. Its position, as best we can tell, is that Dr. Clayman imposed a restriction prohibiting Zamora from engaging in repetitive overhead heavy lifting, that USF had no choice but to enforce the work restriction, and the restriction was not susceptible to a reasonable accommodation. The evidence before us simply does not establish the facts necessary to support this argument.
At oral argument, USF attempted to strengthen its position on this issue by relying on evidence that USF considered transferring Zamora to a different job but determined there were no job vacancies.
Evidence suggesting that USF had no vacancies for other positions that Zamora was qualified to perform would be relevant to the question whether USF attempted to reasonably accommodate Zamoras disability. However, that is not the question at issue here. The essential job function inquiry is an objective determination of whether the employees condition prevents him or her from performing an essential function even with reasonable accommodation. In other words, the relevant inquiry is whether the condition is susceptible to reasonable accommodation, not whether the employer actually made an effort to reasonably accommodate an admitted disability.
The extent and reasonableness of USFs efforts to accommodate Zamora may well become an important issue on remand, but it was not a basis upon which summary judgment was granted and we express no opinion on that issue. However, we do note that evidence indicating that USF considered transferring Zamora to a different position weakens its argument that Zamoras condition was not susceptible to reasonable accommodation. If Zamora was qualified and capable of performing other similar positions at USF notwithstanding his condition, then Zamoras condition was susceptible to reasonable accommodation.
USF submitted evidence that both Harris and Stuart interpreted the QME as imposing a work restriction that precluded Zamora from performing this job function. However, the employers self-serving interpretation of this document is not probative of the actual nature of the work restriction that was imposed. The QME does contain certain statements that could be construed as supporting USFs position. But, when read as a whole, and in light of the clarifying letter Dr. Clayman sent to USF, the QME does not establish that Zamora was absolutely precluded from engaging in repetitive overhead heavy lifting. Rather, this report is evidence that Zamoras prior work-related injuries affected his ability to safely perform his job and that Clayman proposed modifications, i.e. accommodations, that would enable Zamora to continue to work and also protect him from further injury. The record does not show that USF could not make these accommodations, or that it even considered making them.
USF contends that it submitted uncontradicted evidence that USF "could not eliminate or minimize the lifting function without hiring an additional person to ride with Zamora on his routes." That evidence consists solely of Stuarts declaration wherein he recalled that, at the time the adverse employment decision was made, he expressed his "view" to the committee that lifting and stacking restaurant supplies at or above shoulder level is an essential job function that could not be eliminated or minimized without hiring an additional person to ride with Zamora on his routes.
Stuarts personal opinion that Zamoras restriction could only be accommodated by hiring another person to ride with him, if evidence at all, is certainly not uncontradicted evidence that Zamora was unable to perform an essential job function even with reasonable accommodation. As just noted, Dr. Clayman suggested several steps the employer could take that would allow Zamora to safely perform his job. Those suggestions included providing an air-cushioned seat, electric lift gates and proper lifting assistance devices. As best we can perceive from this record, Stuart and other USF employees involved in this matter simply ignored all of Claymans suggestions except for the proposal to minimize repetitive overhead heavy lifting, which they used to justify the adverse employment decision. Indeed, USF continues to ignore the fact that Clayman expressly identified several options for accommodating Zamoras condition. Those suggestions constitute evidence that contradicts Stuarts opinion that Zamoras condition could only be accommodated by hiring another worker to ride with him.
In this regard, we note particularly that Dr. Clayman expressly found that Zamoras symptoms improved during the period USF permitted him to work a shift that required less lifting and to use a lift gate. Clayman advised that "[t]his change in workload and work requirements is probably more helpful than anything else that has happened over the past several years. If he is allowed to continue at this modified work, there is no reason that he would have to enter vocational rehabilitation or seek alternative work options." This portion of Claymans report is not only evidence that Zamoras condition could be reasonably accommodated but also that USF had, in fact, reasonably accommodated Zamora in the past. Nothing in the record before us explains why those accommodations were no longer viable.
Furthermore, USF has overlooked other evidence in the record which contradicts Stuarts opinion and raises a triable issue as to whether Zamora could have performed essential functions with reasonable accommodation. For example, Steven Nava testified at his deposition that he worked with Zamora at USF during the relevant time period and that he was present when Stuart terminated Zamora. Nava contradicted Stuarts opinion by testifying that he believed that Zamora could have performed essential job functions notwithstanding his back problems if he was given work on the night shift, shuttle work or back haul work. In his deposition, Zamora also stated that the need for repetitive overhead heavy lifting could have been minimized by transferring him to a night shift or giving him back haul work. Indeed, Stuart himself admitted during his deposition that night shift work required less repetitive lifting.
In summary, we find that the evidence before us raises triable issues of material fact as to whether Zamora suffered from a physical disability at the time of the adverse employment action and, if he did, whether that disability precluded him from performing an essential job function even with reasonable accommodations. Therefore, summary judgment should not have been granted.
V. DISPOSITION
The judgment is reversed. Costs on appeal are awarded to appellant.
We concur: Kline, P.J., Lambden, J.