Opinion
B195855
6-30-2008
CECILIA SOLORZANO, Plaintiff and Appellant, v. IMPERIAL TOY CORPORATION, Defendant and Appellant.
Mancini & Associates, Marcus A. Mancini, Adam Reisner; Benedon & Serlin, Douglas G. Benedon and Gerald M. Serlin for Plaintiff and Appellant. McLean & McLean, Mark A. McLean, Lauri K. McLean and Benjamin L. Kennedy for Defendant and Appellant.
Not to be Published
Within the span of three weeks, an employee slipped and fell, landing on her back and sustaining a strain of her back and left knee, was treated by a physician and placed on work restrictions, used three sick days because she could not bear the pain, and, within days of returning to work, was terminated. More than a year later, the employee still suffered unbearable pain in her foot, ankle, and knee. She could not lift "heavy objects" like bags of clothes, had problems walking, and her ankle would swell, making it difficult to stand.
The employee filed an action against her employer for disability discrimination, harassment, and retaliation under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.; all further section references are to the Government Code unless otherwise indicated). She also filed a claim for wrongful termination of employment based on the prohibitions in the FEHA. The employer obtained summary judgment on the ground that the employee was not disabled.
We conclude there are disputed issues of fact as to whether the employee was disabled and reverse.
I
BACKGROUND
We accept as true the following facts and reasonable inferences supported by the parties undisputed evidence on the motion for summary judgment. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1125.)
In October 2003, plaintiff Cecilia Solorzano commenced employment with defendant Imperial Toy Corporation. During her 11 months there, she worked in several departments, including the shipping and order departments. During the last two months of her employment, Solorzano was assigned to the order — also known as the "UPS" — department, but would occasionally work in the shipping department.
In the order department, Solorzano would pick up a pallet and place it on the floor, find the boxes with the product numbers that matched the customers orders, put the boxes on the pallet, and wrap the boxes and pallet together in plastic. In the shipping department, she would wrap orders in "bubble plastic."
On Tuesday, August 10, 2004, Solorzano tripped and fell over a pallet, landing on her back. She immediately experienced pain in her lower back and needed help to get up. Solorzano was in too much pain to stand straight. She told her direct supervisor, Maria "Lola" Galeano, about the accident. A coworker took her to the Boyle Heights Industrial Medical Clinic, where she was examined by Dr. Nasser Mizban.
Dr. Mizban diagnosed Solorzano as having sustained a mild strain of her back and left knee, and prescribed pain and anti-inflammatory medication. Solorzano was released to work without restrictions and was told to return to the clinic in three days. Dr. Mizban and Solorzano signed an "After Care Instruction Sheet," which recited these matters. Solorzano did not read the sheet; she is illiterate. Dr. Mizban did not tell Solorzano anything about her injuries or her diagnosis. Solorzano gave the instruction sheet to Imperial Toy.
On Friday, August 13, 2004, Solorzano returned to the clinic. Based on an examination, Dr. Mizban concluded that Solorzano should be placed on "limited duty," with no prolonged standing or walking; no excessive pushing, pulling, or twisting; minimal bending and stooping; and no lifting over 20 pounds. He indicated that Solorzano was to "[b]egin therapy next week" and was to use a lumbar support, which was not supplied. Solorzano was scheduled for a follow-up visit on Monday, August 16, 2004. All of the pertinent information concerning the examination was again contained in an "After Care Instruction Sheet," signed by Dr. Mizban and Solorzano. Imperial Toy received the sheet from Solorzano.
On Monday, August 16, 2004, Dr. Mizban reexamined Solorzano. He determined that she could return to "full work" — without restrictions — the following day. He instructed her to continue taking the medications. Solorzanos next examination was scheduled for August 23, 2004. An "After Care Instruction Sheet" was, as usual, signed and given to Imperial Toy. Solorzano was not told that she was released to "full work." She testified that she was subject to work restrictions — including the 20-pound lifting restriction — through her last day of employment and was never released to "full duty." Until her termination, she was assigned to areas where she did not have to do any heavy lifting. In Solorzanos words, "they never released me to go back to work the same as I used to before."
On Wednesday, August 18, 2004, Solorzano completed a form entitled, "Request for Leave of Absence." The form listed three types of leave: "medical disability," "industrial disability," and "personal/other." A disability leave required the employees physician to complete and sign the form. The bottom part of the form was for use by the company, entitled, "Decision"; the employees supervisor was to state the type of leave, indicate the beginning and ending dates of the leave, and sign the form. Solorzanos completed form stated that she would be out on "sick" leave from August 18, 2004, to August 20, 2004, with a return date of Monday, August 23, 2004. The form contained no medical information and was not signed by a physician. Solorzano showed the form to the warehouse manager, Chris Barth, telling him she wanted to take some time off because she "couldnt stand my pain." He approved the leave. Solorzano and Barth signed the form.
At his deposition, Barth initially testified that Solorzanos leave of absence was "medical," but he quickly rephrased his answer, saying he was not certain. Barth said that if employees asked him for a medical leave, he would approve it "as an accommodation."
On Monday, August 23, 2004, Solorzano returned to work. She also went to see Dr. Mizban. He examined her, told her to continue taking the medications, instructed her to use a back support for heavy duty work, and scheduled a follow-up visit for Thursday, August 26, 2004. As with the prior visits, an "After Care Instruction Sheet" was signed and given to Imperial Toy.
On Thursday, August 26, 2004, Dr. Mizban examined Solorzano and indicated on the "After Care Instruction Sheet" that Solorzano was "discharged to full work [with] no further care indicated." He prescribed a program of home exercise without need of medication. No additional visits were scheduled. The instruction sheet was signed and given to Imperial Toy.
Over the course of her visits to Dr. Mizban, Solorzano would give the instruction sheets to Galeano, her immediate supervisor, or to "Alfonso." Other than her conversation with Galeano on the day of the accident and her conversation with Barth about obtaining a leave of absence, Solorzano depended on the instruction sheets to keep Imperial Toy informed of her injuries and treatment. She did not tell anyone at the company she thought she had a disability or intended to file a workers compensation claim.
Sometime during the week of Monday, August 23, 2004, Barth chose eight to 10 employees for termination, including Solorzano. He testified that the employees in Imperial Toys shipping and order departments were considered seasonal workers, some of whom had been terminated during each of the preceding nine years when the companys business decreased. Seniority was one, if not the only, factor used in making the termination decisions. At the time of his deposition, in March 2006, Barth could not recall anything about Solorzanos seniority. Solorzano was a satisfactory employee; she had no attendance or performance problems.
Galeano, Solorzanos immediate supervisor, testified that, of the seven or so employees left in her department after the terminations, all had more seniority than Solorzano. Galeano did not have an opinion about the seniority of employees terminated in other departments. Solorzano, like other employees, had been cross-trained so that she could work in several departments.
Solorzanos last day with the company was September 3, 2004. That day, Barth asked her if she "had any issues" concerning her injuries. She said no. Barth testified that employees were not terminated if, to his knowledge, they had any physical or mental "issues." Barth did not want to create or add to an employees irritation with the company by terminating them if they were already in a "medical situation."
According to Solorzano, she has been in severe pain since the accident. At her deposition, in April 2006, she was still experiencing "unbearable" pain in her foot, ankle, and knee. Her lower back continued to hurt. She could not lift "heavy things" — like bags of clothing — and had problems walking. In addition, her ankle would swell, making it difficult to stand.
On September 2, 2005, Solorzano filed this action against Imperial Toy, alleging (1) causes of action under the FEHA for disability discrimination, harassment, and retaliation; (2) wrongful termination of employment in violation of public policy based on prohibitions under the FEHA; and (3) a violation of the California Family Rights Act (§ 12945.1 et seq.). On October 18, 2005, Solorzano filed a first amended complaint (complaint), virtually identical to the original, adding her supervisor, Galeano, as a Doe defendant. Imperial Toy and Galeano (collectively defendants) filed an answer.
On June 30, 2006, defendants filed a motion for summary judgment or, in the alternative, for summary adjudication as to each cause of action. Solorzano filed opposition. The matter was heard on September 19, 2006, and taken under submission. By order dated September 21, 2006, the trial court granted summary judgment. As to Galeano, the trial court held that individuals could not be held liable for discrimination under the FEHA, wrongful termination of employment, or a violation of the Family Rights Act. Further, there was insufficient evidence that Galeano had engaged in harassment based on a physical disability or committed acts of retaliation. As to Imperial Toy, the Family Rights Act was inapplicable because Solorzano had not been employed there for more than 12 months. (§ 12945.2, subd. (a).) The FEHA claims and the wrongful termination claim against Imperial Toy failed because Solorzano did not have a physical disability.
On October 23, 2006, defendants filed a motion for attorney fees, contending they were prevailing parties under the FEHA (§ 12965, subd. (b).) Solorzano filed opposition. After hearing the matter, the trial court denied the motion by minute order dated November 15, 2006, finding that Solorzanos complaint "was not in bad faith, frivolous, vexatious or meritless."
On November 30, 2006, the trial court entered judgment in favor of defendants. The judgment recited in part that defendants motion for attorney fees had been denied on November 15, 2006. Solorzano filed an appeal on December 21, 2006, challenging the granting of summary judgment. On January 29, 2007, defendants appealed, challenging the denial of attorney fees.
II
DISCUSSION
The only issue raised in Solorzanos appeal is whether the trial court properly determined that she was not physically disabled as a matter of law. We conclude that the trial court erred. The question of whether Solorzano was disabled does not necessarily turn on whether Imperial Toy had full knowledge of her condition. There is a triable fact as to her alleged disability.
Solorzano argues that the trial courts error requires that we reverse as to all of her FEHA claims as well as the wrongful termination claim, which is based on prohibitions under the FEHA. On appeal, she does not challenge the granting of summary judgment as to Galeano or the summary adjudication of her claims under the Family Rights Act. With the abandonment of those claims, it is appropriate for us to dispose of the appeal by way of a straightforward reversal. And the reversal of the judgment renders moot Imperial Toys appeal of the attorney fees issue because it is no longer the prevailing party in the case. Nor is Galeano entitled to fees.
An individual can be held liable under the FEHA for disability harassment. (See § 12940, subd. (j)(1), (3).) The trial court found that Galeano did not harass Solorzano based on a physical disability because Galeano was an "equal opportunity" harasser — she treated all employees harshly. Thus, Solorzano was half right: Galeano harassed her. Accordingly, we cannot say the action against Galeano was frivolous, unreasonable, or without foundation. (See Bond v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 921-925.)
Typically, on appeal from a summary judgment in an FEHA case, we apply a three-part test originally developed in the federal courts. "`First, it is the plaintiffs burden to prove by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff proves the prima facie case, then the burden shifts to the defendant to provide some legitimate nondiscriminatory reason for its employment decision. Third, if the defendant carries this burden, then the plaintiff must have an opportunity to show by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 823, citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248 and McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).) This test is commonly called the McDonnell Douglas test.
"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." (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)
Here, we do not decide whether Imperial Toy offered a legitimate, nonprohibited reason for Solorzanos termination or whether Solorzano responded with sufficient evidence to show pretext. This appeal, as briefed, is limited to whether Solorzano was physically disabled — the only issue decided by the trial court challenged by Solorzano on appeal. We do not reach any other issues. (See Code Civ. Proc., § 437c, subd. (m)(2).)
Perhaps the trial court did not go beyond the first step of the McDonnell Douglas test because Imperial Toys proffered legitimate reason for Solorzanos termination — a layoff due to a slowdown in business — was based on her seniority, and Barth, who testified he chose her for layoff, could not recall anything about her length of service.
Under the FEHA, "physical disability" includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, "limits" a "major life activity." (§ 12926, subd. (k)(1)(A), (B).) "Limits" is synonymous with making the achievement of a major life activity "difficult." (Id., subd. (k)(1)(B)(ii).) "Major life activity" is construed broadly and includes physical, mental, and social activities, and working. (Id., subd. (k)(1)(B)(iii).) "`[W]orking 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." (§ 12926.1, subd. (c).) Whether a major life activity is limited "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." (§ 12926, subd. (k)(1)(B)(i).)
An actual or existing disability is not necessary. The FEHA defines "disability" to include: (1) "[h]aving a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment [that constitutes a physical disability], which is known to the employer"; (2) "[b]eing regarded or treated by the employer . . . as having, or having had, any physical condition that makes achievement of a major life activity difficult"; or (3) "[b]eing regarded or treated by the employer . . . 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." (§ 12926, subd. (k)(3)-(5).)
Under an antidiscrimination statute like the FEHA, the trier of fact must determine the employers motive in making the adverse employment decision. (See McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, 359-360 [ 115 S.Ct. 879, 885]; Olson v. General Elec. Astrospace (3d Cir. 1996) 101 F.3d 947, 954-955; Rabinovitz v. Pena (7th Cir. 1996) 89 F.3d 482, 487.) We therefore examine the circumstances existing when the decision to terminate Solorzano was made.
During the week of August 23, 2004, Barth made the crucial decision. About two weeks earlier, Solorzano had sustained a work-related injury by tripping over a pallet and landing on her back. The pain was immediate. She needed help to get up and could not stand straight. Solorzano went to the doctor and was diagnosed with a mild strain of the back and left knee. She subsequently went to the doctor several times for treatment. On Monday, August 23, Solorzano returned from a short sick leave, having told Barth on August 18 that she could not "stand" the pain and wanted to take some time off. According to Solorzano, when she returned to work, she was still subject to the 20-pound lifting restriction and was under doctors orders to take pain medication. The lifting restriction remained in effect through the end of her employment. Solorzano testified at her deposition more than a year later that she never recovered from the accident: She continued to have unbearable pain in her foot, ankle, and knee as well as pain in her lower back; she had ongoing difficulty walking, standing, and lifting — activities that were necessary to perform her job. Thus, under the FEHA, there is a disputed fact as to whether Solorzanos condition constituted a physical disability when the termination decision was made.
Imperial Toy points to the August 26, 2004 "After Care Instruction Sheet" in which Dr. Mizban "discharged" Solorzano "to full work" with "no further care indicated." This sheet, according to Imperial Toy, proves that Solorzano was not disabled. But Imperial Toy did not establish that Barth knew about its contents before he chose Solorzano for termination.
In addition, to the extent Imperial Toy relies on the instruction sheets as a source of information to refute Solorzanos claims, there is another factual question: Who at the company, if anyone, read them and when? Solorzano testified she gave the sheets to Galeano. But Galeano said that the sheets were left at the front of the office and then sent to the "chief of personnel," so she did not see them. Galeano also said that, as far as she knew, Solorzano was not placed on any work restrictions or light duty after the accident — contradicting all of the instruction sheets. For his part, Barth said Solorzano was injured in the accident, sent to the clinic, and placed on light duty when she came back. But Dr. Mizban did not place Solorzano on light duty until after her second visit, three days later. And Barth could not recall if Solorzano was placed on light duty in response to Dr. Mizbans instructions.
We recognize that "[g]enerally, `"[t]he employee bears the burden of giving the employer notice of the disability."" (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222; accord, Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236-237.) "[I]n order to prove [a disability discrimination] claim, a plaintiff must prove the employer had knowledge of the employees disability when the adverse employment decision was made." (Brundage, at pp. 236-237.) But the trial court did not base its ruling on that ground. (See Code Civ. Proc., § 437c, subd. (m)(2).) And, as stated, the record does not disclose who at the company, if anyone, knew about the information contained in the "After Care Instruction Sheets" or when.
Last, Solorzano may have been a victim of a "perceived disability." (See § 12926, subd. (k)(4).) Regardless of whether she had an actual disability, Imperial Toy can be held liable if it terminated her because it believed she was disabled. (See § 12926, subd. (k)(4).) The evidence does not preclude this theory of liability given that Solorzano was terminated so soon after she requested an accommodation for her injury. (See Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 [prima facie case may be established by proximity in time between employees protected activity and adverse employment decision].) Further, according to Solorzano, Imperial Toy kept her on light duty until her last day of employment, suggesting the company "regarded" her as disabled.
For its part, Imperial Toy relies on federal authorities under the Americans with Disabilities Act (ADA) (42 U.S.C. §§ 12101-12213) for the proposition that temporary, nonchronic impairments are usually not disabilities. (See, e.g., Sanders v. Arneson Products, Inc. (9th Cir. 1996) 91 F.3d 1351, 1354; McDonald v. Com. of PA., Dept. of Public Welfare (3d Cir. 1995) 62 F.3d 92, 96; but see Ageman v. AFG Industries, Inc. (9th Cir. 2002) 50 Fed. Appx. 875, 877 [purporting to apply FEHA without analysis].) Federal regulations implementing the ADA provide: "The following factors should be considered in determining whether an individual is substantially limited in a major life activity: [¶] (i) The nature and severity of the impairment; [¶] (ii) The duration or expected duration of the impairment; and [¶] (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." (29 C.F.R. § 1630.2(j)(2) (2007), italics added.) "[T]emporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities. Such impairments may include, but are not limited to, broken limbs, sprained joints, concussions, appendicitis, and influenza." (29 C.F.R. pt. 1630, Appen. (2007) p. 368 [construing 29 C.F.R. § 1630.2(j)].)
As stated by one federal court: "Applying the protections of the ADA to temporary impairments . . . would work a significant expansion of the Act. The ADA simply was not designed to protect the public from all adverse effects of ill-health and misfortune. Rather, the ADA was designed to `assure[] that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. . . . Extending the statutory protections available under the ADA to individuals with broken bones, sprained joints, sore muscles, infectious diseases, or other ailments that temporarily limit an individuals ability to work would trivialize this lofty objective." (Halperin v. Abacus Technology Corp. (4th Cir. 1997) 128 F.3d 191, 200, citation omitted, overruled on another point in Baird ex rel. Baird v. Rose (4th Cir. 1999) 192 F.3d 462 as stated in Lamb v. Qualex, Inc. (4th Cir. 2002) 33 Fed.Appx. 49, 56; cf. Pollard v. Highs of Baltimore, Inc. (4th Cir. 2002) 281 F.3d 462, 468-469 [explaining Halperin].)
The ADA and the FEHA differ on the "temporary disability" issue. Neither the FEHA nor its implementing regulations (see Cal. Code Regs., tit. 2, § 7293.6) refer to the permanency, long-term impact, duration, or expected duration of an impairment as a relevant factor in defining a disability. Rather, an impairment constitutes a disability if it makes a major life activity "difficult." (§ 12926, subd. (k)(1)(B)(ii).) As the text of the FEHA makes plain: "The law of this state in the area of disabilities provides protections independent from those in the federal Americans with Disabilities Act . . . . Although the federal act provides a floor of protection, this states law has always, even prior to passage of the federal act, afforded additional protections." (§ 12926.1, subd. (a).)
Imperial Toy asserts that the FEHA expressly incorporates the ADAs definition of "disability." That is only half right. The ADAs definition applies under the FEHA if it would result in "broader protection." (§ 12926, subd. (l).) That is not the situation here.
In light of these statutory differences, one federal court recently, and properly, concluded that the FEHA, as distinguished from the ADA, does not exclude all temporary, nonchronic impairments. (See Diaz v. Federal Express Corp. (C.D.Cal. 2005) 373 F.Supp.2d 1034, 1046-1053.) In addition, the evidence in this case suggests that Solorzanos impairment was not temporary and may have been chronic.
For the foregoing reasons, we conclude that the trial court erred in granting summary judgment.
III
DISPOSITION
The judgment is reversed. The order denying defendants motion for attorney fees is vacated. Plaintiff is entitled to costs on appeal.
We concur:
ROTHSCHILD, J.
NEIDORF, J.