Opinion
Super. Ct. No. 30-2008-00114482
ORDER MODIFYING OPINION; DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT
ARONSON, J.
Appellant Linda Wills’s petition for rehearing constructively filed on April 28, 2011, is DENIED. The opinion filed on April 13, 2011, applies the proper standard for determining whether respondent Superior Court of the State of California, County of Orange (OC Court) established a legitimate, nondiscriminatory reason for terminating Wills’s employment and whether Wills presented sufficient evidence to create a triable issue of material fact regarding the reason the OC Court terminated her. Raytheon Co. v. California Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, cited in the petition, does not address the standard for evaluating a discrimination claim under the McDonnell Douglas burden-shifting framework. Instead, it addresses the affirmative defense that an employer may terminate an employee who cannot perform his or her essential duties in a manner that does not endanger health or safety. (Gov. Code, § 12940, subd. (a)(1).) The Raytheon decision is irrelevant to whether the OC Court properly articulated a legitimate, nondiscriminatory reason for terminating Wills’s employment. Moreover, the factual statements made in the opinion are supported by the appellate record and Wills failed to demonstrate any purported omission or misstatement of fact was material. Nonetheless, for the sake of clarity, the opinion is MODIFIED as set forth below.
Amici curiae Employers Group and California Employment Law Council’s request for modification of the opinion by deleting the discussion regarding the “danger to self or others” provision in Government Code section 12940, subdivision (a)(1), is DENIED. Nonetheless, for the sake of clarity, the opinion is MODIFIED as set forth below.
The opinion is hereby MODIFIED as follows:
1. On page 6, the first sentence of the second full paragraph, beginning with “During its investigation” is deleted and the following sentence is inserted in its place:
During its investigation, the OC Court interviewed Wills, who initially denied making any comment about placing Gardetto and Nellesen on a “Kill Bill” list, but later stated she intended the comment as a joke.
2. On page 30, the last sentence of the partial paragraph, beginning with “This provision provides an affirmative defense” and the reference citation ending with “¶ 9:2447, p. 9-192 (rev. # 1, 2009)” are deleted and the following is inserted in their place:
Case law and secondary sources state this provision provides an affirmative defense employers may assert outside the McDonnell Douglas framework when an employee poses an actual threat to health or safety in the workplace.6 (See Raytheon Co. v. California Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252; Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) ¶ 9:2447, p. 9 192; 2 Wilcox, Cal. Employment Law (2010) Substantive Requirements Under Equal Employment Opportunity Laws, § 41.97[1], pp. 41-492 to 41 495.)
3. On page 30, replace footnote 6 with the following footnote:
6 The law may be unsettled on whether this provision in Government Code section 12940, subdivision (a)(1), continues to provide an affirmative defense, as opposed to an element of the plaintiff’s prima facie case. In Green v. State of California (2007) 42 Cal.4th 254, the California Supreme Court held that whether an employee is a qualified individual (that is, whether he or she can perform the essential functions of the job with or without reasonable accommodation) is part of the employee’s prima facie case and not an affirmative defense on which the employer bears the burden of proof. (Id. at p. 260.) Green, however, construed a different part of Government Code section 12940, subdivision (a)(1), regarding whether the employee can perform the essential job functions at all. It did not address who bears the burden of proof on whether an employee can perform essential job functions without endangering health or safety. No reported California case since Green has addressed who bears that burden.
The ADA also authorizes an employer to terminate or refuse to hire a disabled individual who poses a “direct threat to the health or safety of other individuals in the workplace” and no reasonable accommodation exists that would eliminate the risk. (42 U.S.C. §§ 12111(3), 12113(a) & (b).) Several circuits have held this ADA provision establishes an affirmative defense on which the employer bears the burden of proof. (Branham v. Snow (7th Cir. 2004) 392 F.3d 896, 906 907, fn. 5 [collecting cases].) Other courts have held that the employee bears the burden of proof on this issue, at least where safety is a job qualification. (Ibid.; see also McKenzie v. Benton (10th Cir. 2004) 388 F.3d 1342, 1353-1356.)
4. On page 30, the first sentence of the first full paragraph, beginning with “The OC Court did not seek” is deleted and the following sentence is inserted in its place:
The OC Court did not seek summary judgment on the ground Wills posed an actual threat of harm to anyone.
5. On page 32, the first sentence of the last partial paragraph, beginning with “Wills contends” is deleted and the following sentence is inserted in its place:
Wills does not dispute engaging in any of the underlying conduct, but nonetheless contends she met her burden in two ways.
6. On page 34, the fourth sentence of the last paragraph, beginning with “As the independent investigator found” is deleted and the following sentence is inserted in its place:
The comment in the elevator did not rise to the same level as Wills’s conduct at the Anaheim Police Department or in sending the ringtone or e mail messages.
7. On page 35, the third sentence of the second paragraph, beginning with “Contrary to Wills’s contention” is deleted and the following sentence is inserted in its place:
Contrary to Wills’s contention, the OC Court issued notices of intent to discharge to the other two employees.
These modifications do not change the judgment.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.