Stanford Law School - Robert Crown Law Library

Filed 8/23/07

IN THE SUPREME COURT OF CALIFORNIA

DWIGHT D. GREEN,
Plaintiff and Appellant,
S137770
v.
Ct.App. 4/2 E034568
STATE OF CALIFORNIA,
San Bernardino County
Defendant and Appellant.
Super. Ct. No. RCV060816

The Americans with Disabilities Act (ADA) requires that plaintiffs prove
they are “qualified individuals” under the statute, i.e., that they have the ability to
perform a job’s essential duties before they can prevail in a lawsuit for
discrimination. (42 U.S.C. § 12112(a).) Although California’s Fair Employment
and Housing Act (Gov. Code, § 12900 et seq. (FEHA))1 does not expressly
include the term “qualified individual,” the question here is whether it includes a
similar requirement. In 1997, a Court of Appeal held that it does. (Brundage v.
Hahn (1997) 57 Cal.App.4th 228, 235 (Brundage).) The Court of Appeal here
held that it does not.
The FEHA prohibits discrimination against any person with a disability but,
like the ADA, provides that the law allows the employer to discharge an employee
with a physical disability when that employee is unable to perform the essential

1 All statutory references are to the Government Code unless otherwise stated.
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duties of the job even with reasonable accommodation. (§ 12940, subd. (a)(1); 42
U.S.C. § 12112(a).) After reviewing the statute’s language, legislative intent, and
well-settled law, we conclude the FEHA requires employees to prove that they are
qualified individuals under the statute just as the federal ADA requires. We
therefore reverse the Court of Appeal’s judgment.
I. FACTS AND PROCEDURAL HISTORY
The facts and procedural discussion are taken largely from the Court of
Appeal opinion, supplemented by the record.
Plaintiff began working for the State of California in 1974. In 1987,
plaintiff worked as a stationary engineer for the Department of Corrections at the
California Institute for Men in Chino (the Institute). Plaintiff’s duties included
maintenance and repair of equipment and mechanical systems and supervision and
instruction of a crew of inmates. In 1990, plaintiff was diagnosed with hepatitis C.
Plaintiff presumably contracted the disease while working on the sewer pipes at
the Institute. From 1990 until 1997, plaintiff did not have any work restrictions
because of the illness, nor did he lose any time from work. In addition, plaintiff
was considered a good employee and received letters of commendation. George
Woods, who supervised plaintiff from 1994 through 1997, stated in several letters
of commendation that plaintiff was one of his best stationary engineers.
In 1997, plaintiff’s physician, Dr. James Wang, began treating plaintiff with
the drug interferon or Infergen (a brand of interferon). Plaintiff received Infergen
injections as a treatment for hepatitis C. A single course of treatment required
injections three times a week for a one-year period. The treatment caused plaintiff
to feel fatigued, have trouble sleeping, and to suffer headaches and body aches.
On February 14, 1997, supervisor Woods received a letter from Dr. Wang,
requesting that plaintiff be put on light duty until at least May or June of 1997.
Woods accommodated plaintiff and allowed him to arrive to work late on the days
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he received the Infergen injections. At times, Woods assigned plaintiff to
positions that did not require heavy labor. In all other respects, plaintiff continued
to perform his duties.
On January 11, 1999, plaintiff was reprimanded for coming into work late
on various days. Plaintiff explained to his employer that his ongoing medical
condition prevented him from being punctual at times.
In June 1999, plaintiff injured his back while lifting a garbage disposal.
The injury was unrelated to any side effects from the interferon treatment.
Plaintiff continued working, but on the recommendation of the doctor treating his
back was placed on light duty. Defendant had a policy that employees could be on
light duty for a limited time only. Because plaintiff’s back problems continued to
restrict him to light duty work, in November 1999, defendant placed plaintiff on
disability leave.
On July 3, 2000, plaintiff returned to work cleared for full duty, taking sick
leave to attend physical therapy sessions for his back injury only. At that time, the
Institute’s return to work coordinator, Kristi Hilliker, reviewed plaintiff’s file.
Hilliker noticed the 1997 doctor’s report the workers’ compensation’s qualified
medical examiner (Dr. Alvin Markowitz) prepared at the time plaintiff began
receiving his interferon injections. The report recommended plaintiff for light
duty only. Based on this report, Hilliker concluded that plaintiff should not have
been cleared for full duty work, and decided to meet with plaintiff that same day.
Before the meeting could take place, however, plaintiff went to the coordinator’s
office complaining of fatigue due to his hepatitis, and requested to see a doctor.
He met with the Institute’s associate warden of business services, Sheila Tatum,
and Hilliker. Plaintiff told them that he was feeling tired and wanted to see his
doctor. Tatum and Hilliker told plaintiff that based on work restrictions contained
in the 1997 medical report, plaintiff was incapable of performing his duties and
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could not return to work. They discussed various options with plaintiff, who
initially decided to take disability retirement.
After the meeting, plaintiff and Hilliker communicated about plaintiff’s
options. Plaintiff received a letter from Hilliker dated October 2, 2000, informing
him that unless he could be cleared for full duty, he could not return to his position
as a stationary engineer. In November of the same year, plaintiff sought
permission to return to work. Hilliker denied his request based on 1999 findings
of a workers’ compensation proceeding that found plaintiff had suffered a work-
related injury.
Plaintiff subsequently filed a disability discrimination claim with the
Department of Fair Employment and Housing. He then filed a complaint for
damages in the superior court alleging that defendant discriminated against him
because of his disability. Dr. Markowitz’s 1997 report was not admitted into
evidence, and Dr. Markovitz was not allowed to testify. The jury returned a
general verdict for plaintiff, awarding him $597,088 in economic damages, and $2
million in noneconomic damages.
Defendant moved for a new trial challenging the trial court’s decision to
exclude Dr. Markovitz’s testimony. The trial court rejected defendant’s
contention, but ruled that the motion for a new trial would be granted unless
plaintiff accepted a remittitur, which plaintiff did.
On appeal, defendant raised several claims, including: The jury’s verdict
was not supported by the evidence; a decision of the workers’ compensation judge
barred plaintiff’s disability discrimination claim; the court abused its discretion in
excluding evidence of the subsequent Workers’ Compensation Appeals Board
proceeding and the testimony of Dr. Alvin Markovitz, the qualified medical
examiner for the administrative proceeding; the trial court erred in failing to
instruct the jury on the elements of a FEHA claim and the defenses; and the award
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of $2 million in noneconomic damages was excessive. Plaintiff cross-appealed,
claiming that the trial court exceeded its authority in reducing the noneconomic
damages and abused its discretion in denying the requested amount of attorneys
fees.
The Court of Appeal affirmed the judgment in plaintiff’s favor.
Recognizing that trial court never instructed the jury on the element of
qualification or inability to perform, the Court of Appeal held that the FEHA
“does not require plaintiff to prove that he is a qualified individual. Rather, the
burden is on defendant to establish that plaintiff is incapable of performing his
essential duties with reasonable accommodation.” We granted defendant’s
petition for review.
As we explain, we disagree with the statement of defendant’s burden of
proof adopted by the Court of Appeal and advocated by plaintiff here. Instead, we
conclude that the Legislature has placed the burden on a plaintiff to show that he
or she is a qualified individual under the FEHA (i.e., that he or she can perform
the essential functions of the job with or without reasonable accommodation). As
explained further below, legislative intent, case law, and legislative history support
defendant’s position—a view that also finds support in Evidence Code section
500, which requires a plaintiff to prove each fact essential to the claim for relief he
or she is asserting.
II. DISCUSSION
A. Statutory Analysis
Why have the California cases, beginning with Brundage, supra, 57
Cal.App.4th at page 235, nearly unanimously presumed plaintiffs must prove, like
their federal counterparts under the ADA, that they are qualified individuals under
the FEHA in order to prevail in their lawsuits? The answer lies in the statute’s
plain meaning, which is clear and unambiguous.
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Under settled canons of statutory construction, in construing a statute we
ascertain the Legislature’s intent in order to effectuate the law’s purpose. (Dyna-
Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-
1387.) We must look to the statute’s words and give them their usual and ordinary
meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The statute’s
plain meaning controls the court’s interpretation unless its words are ambiguous.
If the plain language of a statute is unambiguous, no court need, or should, go
beyond that pure expression of legislative intent. (Ibid.)
We therefore begin our statutory analysis with a comparison of the ADA
and the FEHA provisions at issue. We then discuss plaintiff’s statutory
interpretation and why we disagree with it under the premise that a statute’s
meaning is guided by the plain words the Legislature chose. (Kobzoff v. Los
Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 861.)
The ADA provides: “No covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual in
regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” (42 U.S.C. § 12112(a).) In turn, the ADA defines the
term “qualified individual with a disability” to mean “an individual with a
disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or
desires.” (42 U.S.C. § 12111(8).)
Federal case law interpreting the ADA is clear that an employee bears the
burden of proving, among other elements, that he or she meets the definition of a
“qualified individual with a disability” in order to establish a violation of the
ADA. Speaking in terms of the elements for which a plaintiff bears the burden of
proof at trial, the high court has explained that “[a]n ADA plaintiff bears the
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burden of proving that she is a ‘qualified individual with a disability’ — that is, a
person ‘who, with or without reasonable accommodation, can perform the
essential functions’ of her job.” (Cleveland v. Policy Management Systems (1999)
526 U.S. 795, 806; see also Jones v. Potter (6th Cir. 2007) 488 F.3d 397, 403;
Browning v. Liberty Mut. Ins. Co. (8th Cir. 1999) 178 F.3d 1043, 1047; Waggoner
v. Olin Corp. (7th Cir. 1999) 169 F.3d 481, 484; Laurin v. Providence Hospital
(1st Cir. 1998) 150 F.3d 52, 56, 58-59; Monette v. Electronic Data Systems Corp.
(6th Cir. 1996) 90 F.3d 1173, 1178, 1184, 1186 & fn. 12; Katz v. City Metal Co.,
Inc. (1st Cir. 1996) 87 F.3d 26, 30, 33; Chandler v. City of Dallas (5th Cir. 1993)
2 F.3d 1385, 1389-1390, 1393-1394 [Rehabilitation Act of 1973]; see also Equal
Employment Opportunity Commission v. Wal-Mart Stores, Inc. (8th Cir 2007) 477
F.3d 561, 568.) This qualification element of the plaintiff’s burden of proof was
also found in the predecessor to the ADA, the Rehabilitation Act of 1973. Many
decisions analyzing the earlier enactment are relied upon in interpreting the ADA.
(See e.g., Monette v. Electronic Data Systems Corp., supra, 90 F.3d at pp. 1177-
1178; Chandler v. City of Dallas, supra, 2 F.3d at pp. 1389-1390, 1393-1394; see
also Rizzo v. Children’s World Learning Centers, Inc. (5th Cir. 1996) 84 F.3d 758,
763, affd. en banc (2000) 213 F.3d 209; White v. York International Corp. (10th
Cir. 1995) 45 F.3d 357, 360-361 & fn. 5; Doe v. New York University (2nd Cir.
1981) 666 F.2d 761, 776-777.) The reason is clear; it is not unlawful under
federal law to draw a distinction on the basis of a disability if that disability
renders an employee unqualified, with or without reasonable accommodation, to
perform the essential functions of a position.
California has prohibited employment discrimination based on physical
handicap since 1973. (Colmenares v. Braemar Country Club, Inc. (2003) 29
Cal.4th 1019, 1024-1025.) “In 1980, that prohibition and the definition of
physical handicap to include ‘impairment of sight, hearing, or speech, or
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impairment of physical ability’ were incorporated into the newly enacted FEHA.”
(Id. at pp. 1024-1025, quoting Stats. 1980, ch. 992, § 4, p. 3144.)
Like the ADA, and like its predecessor the Rehabilitation Act of 1973,
today the FEHA, section 12940, subdivision (a), prohibits discrimination based on
an employee’s physical disability. Under the FEHA, it is unlawful “[f]or an
employer, because of the race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition . . . of any person, . . . to
bar or to discharge the person from employment or from a training program
leading to employment, or to discriminate against the person in compensation or in
terms, conditions, or privileges of employment.” (Ibid.) Although section 12940
proscribes discrimination on the basis of an employee’s disability, it specifically
limits the reach of that proscription, excluding from coverage those persons who
are not qualified, even with reasonable accommodation, to perform essential job
duties: “This part does not prohibit an employer from refusing to hire or
discharging an employee with a physical or mental disability. . . where the
employee, because of his or her physical or mental 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.”
(§ 12940, subd. (a)(1).)
By its terms, section 12940 makes it clear that drawing distinctions on the
basis of physical or mental disability is not forbidden discrimination in itself.
Rather, drawing these distinctions is prohibited only if the adverse employment
action occurs because of a disability and the disability would not prevent the
employee from performing the essential duties of the job, at least not with
reasonable accommodation. Therefore, in order to establish that a defendant
employer has discriminated on the basis of disability in violation of the FEHA, the
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plaintiff employee bears the burden of proving he or she was able to do the job,
with or without reasonable accommodation.
In this sense, the FEHA is strikingly similar to the ADA, which as indicated
prohibits employer discrimination against any “qualified individual with a
disability,” i.e., discrimination against “an individual with a disability who, with or
without reasonable accommodation, can perform the essential functions of the
employment position.” (42 U.S.C. § 12111(8); see 42 U.S.C. § 12112(a).) This
similarity between the state and federal enactments is not a coincidence, but
reflects the Legislature’s deliberate effort in 1992 to conform the FEHA to this
ADA provision. As the legislative history discloses, the Legislature amended the
FEHA in 1992 by clarifying that an employee must be able to perform the
“essential duties with reasonable accommodations.” (Stats. 1992, ch. 913, § 1, p.
4282.) In passing the amendment, at least one legislative analysis observed the
Legislature’s “conformity [to the ADA rules] will benefit employers and
businesses because they will have one set of standards with which they must
comply in order to be certain that they do not violate the rights of individuals with
physical or mental disabilities.” (Assem. Com. on Judiciary, analysis of Assem.
Bill No. 1077 (1991-1992 Reg. Sess.) as amended Jan. 6, 1992, p. 4.) It is clear,
then, that the Legislature incorporated the ADA requirement with full knowledge
of the purpose the language serves in the ADA—as a means of distinguishing
permissible employment practices from impermissible disability discrimination
based on the employee’s ability to perform in the particular employment position
with reasonable accommodation. Thus, even if there were some conceivable
ambiguity regarding the burden issue prior to that point in time, no such ambiguity
existed afterward.
Requiring a plaintiff employee who seeks relief under the FEHA to
shoulder the burden of producing evidence and persuading the trier of fact that the
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defendant employer engaged in impermissible disability discrimination against
him or her as a qualified individual, as defined by the FEHA, is consistent with the
general rule in California that “a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief . . . that he is
asserting.” (Evid. Code, § 500.) As in the typical civil action seeking relief in a
California court, it is reasonable to require a plaintiff who alleges a FEHA
violation as a basis for recovery to prove the elements of a claim for violation of
the Act, including by proving the element that the defendant impermissibly
discriminated because the plaintiff was able to do the job with or without
reasonable accommodation.
Plaintiff contends that the employer bears the burden to prove that a
plaintiff employee is not qualified to sue under the FEHA, essentially asserting
that the lack of qualification constitutes an affirmative defense. In support of this
argument, plaintiff points to language in the FEHA stating the statutory provisions
apply to any person making a discrimination claim. In plaintiff’s view, this
particular language in the FEHA differs significantly from the ADA, which omits
the “any person” language and instead reflects an unambiguous intent to protect a
“qualified individual” only.
The Court of Appeal agreed with plaintiff, reasoning that the statutory
phrase “any person” applies to any plaintiff alleging a claim of disability
discrimination under the FEHA. (§ 12940, subd. (a).) The court interpreted the
FEHA’s use of this phrase to mean that a plaintiff need not prove that he or she
satisfies the ADA’s “qualified individual” requirement, but that lack of
qualification would be an affirmative defense.
We are not persuaded. The FEHA’s use of the term “any person” in listing
the various forms of prohibited discrimination does not warrant disregard of the
specific language unambiguously providing that an adverse employment action on
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the basis of disability is not prohibited if the disability renders the employee
unable to perform his or her essential duties, even with reasonable
accommodation. When read together with subdivision (a)(1), subdivision (a)’s
reference to “any person” cannot reasonably be understood to specially alter the
ordinary burden of proof set forth in Evidence Code section 500. Had the
Legislature actually intended to relieve a plaintiff employee of the burden of
proving an actionable discrimination on the basis of disability, thereby departing
significantly from federal law, we believe it could and would have done so in a
more conspicuous manner.
Contrary to plaintiff’s contention and the Court of Appeal’s position, the
FEHA and the ADA both limit their protective scope to those employees with a
disability who can perform the essential duties of the employment position with
reasonable accommodation. (Compare § 12940, subd. (a)(1) with 42 U.S.C.
§§ 12111(8), 12112(a).) We see no statutory basis for construing the FEHA any
differently from the ADA with regard to a plaintiff employee’s burden of proof.
B. Plaintiff’s Additional Claims
Plaintiff contends that our statute is not clear, and that confusion on the
burden of proof requirement is apparent in jury instructions on the definition of
“qualified individual.” For example, under BAJI No. 12.12, an instruction that
was given in this case over defendant’s objection that it should be amended to
include a qualification element, the plaintiff is not required to prove his or her
ability to perform the essential duties of the job with or without reasonable
qualification. By contrast, the Judicial Council of California Civil Jury
Instructions includes the capacity to perform the essential duties of the job as one
of the elements of proof for a disability discrimination claim under section 12940,
subdivision (a). (Judicial Council of Cal. Civ. Jury Instns. (June 2006 rev.) CACI
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No. 2540.) The Directions for Use for CACI No. 2540 observe, however, that
“there [is] a divergence of authority on whether the plaintiff is required to prove
that he or she has the ability to perform the essential duties of the job.”
The Directions for Use following CACI No. 2540 compares Brundage
with a later decision, Bagatti v. Department of Rehabilitation (2002) 97
Cal.App.4th 344. Bagatti dealt with section 12940, subdivision (m), which
governs an employer’s obligation to afford reasonable accommodations to a
worker with a disability. The court held that the plaintiff was not required to
prove whether she could perform the essential functions of her position in order to
establish a prima facie case of discrimination, concluding that these were
requirements under the ADA but not under the FEHA. (Bagatti, supra, 97
Cal.App.4th at pp. 360-362.) Although it agreed with the Bagatti holding, the
Court of Appeal here correctly concluded that Bagatti provided little guidance on
the qualification issue because it involved a cause of action for the failure to
accommodate under section 12940, subdivision (m), and the court believed it was
unlikely the jury relied on the plaintiff’s reasonable accommodation cause of
action in reaching its verdict.
In addition, in claiming ambiguity under the FEHA, plaintiff also relies on
the fact that in 1992 the Legislature amended the FEHA in order to replace the
former term “physical handicap” with the term “physical disability” and to provide
a greater amount of protection to employees than that provided under the 1990-
enacted ADA. (§ 12940, as amended by Stats. 1992, ch. 913, § 23.1, pp. 4313-
4316.) In amending the FEHA in significant part, including replacing the former
term “physical handicap” with the term “physical disability,” the Legislature
stated: “It is the intent of the Legislature in enacting this act to strengthen
California law in areas where it is weaker than the [ADA] and to retain California
law when it provides more protection for individuals with disabilities than the
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[ADA].” (Stats. 1992, ch. 913, § 1, p. 4282; see Colmenares v. Braemar Country
Club, Inc., supra, 29 Cal.4th at p. 1026.) In 2000, the Legislature also declared:
“Although the federal act provides a floor of protection, this state’s law has
always, even prior to passage of the federal act, afforded additional protections.”
(§ 12926.1, subd. (a).)
The fact that the Legislature intended to provide plaintiffs with broader
substantive protection under the FEHA, however, does not affect the Legislature’s
contemplation that a plaintiff must prove that he or she can perform the essential
functions of the job in order to prevail on a claim under the FEHA. As we have
explained, in disability discrimination actions, the plaintiff has not shown the
defendant has done anything wrong until the plaintiff can show he or she was able
to do the job with or without reasonable accommodation.
Plaintiff next contends that the California Code of Regulations further
supports his statutory interpretation because it emphasizes the differences between
the FEHA requirements and the ADA. The dissent claims that the administrative
agency’s adoption of the regulations is entitled to great weight and supports
plaintiff’s position. The regulations provide that in California: “Disability
discrimination is established by showing that an employment practice denies, in
whole or in part, an employment benefit to an individual because he or she is an
individual with a disability.” (Cal. Code Regs., tit. 2, § 7293.7.) Plaintiff claims
that the regulations provide additional support for his claim that under the FEHA,
whether an employee is qualified or has the ability to perform the job’s essential
duties is for the employer to prove as part of its defense of the disability action.
To the extent the California Code of Regulations arguably creates
ambiguity about the element of proof of a disability discrimination claim (see e.g.,
Cal. Code Regs., tit. 2, § 7293.8, subd. (b)), we find the Legislature’s intent
supports defendant’s position and must prevail. (See Morris v. Williams (1967) 67
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Cal.2d 733, 748 [administrative regulations that alter or amend a statute or enlarge
or impair its scope are void and courts may strike them down].) Initially, plaintiff
fails to consider the fact that since its codification, the FEHA has not imposed
liability on an employer if an employee, even a disabled employee, could not
perform his or her duties with or without reasonable accommodation. Indeed, the
Legislature has never indicated the intent to compel an employer to employ such a
person who could not perform the essential job duties with or without reasonable
accommodation. To do so would defy logic and establish a poor public policy in
employment matters.
C. Instructional Error
As noted, the trial court read a pattern instruction to the jury that did not
require plaintiff to shoulder the burden of proving he was qualified for the
position, notwithstanding defendant’s request that the instruction be modified to
include the requirement. (BAJI No. 12.12.) The trial court did not instruct the
jury on the FEHA’s requirement that plaintiff must prove he was qualified for the
position, or able to perform the job’s essential duties. Both parties requested the
jury be given BAJI No. 12.14, the “inability to perform defense,” but the trial
court inexplicitly omitted the instruction. Neither party objected to the omission,
but the failure to object does not waive any right to the instruction because it is
incumbent upon the trial court to instruct on all vital issues in the case. (Manguso
v. Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 581-582 [erroneous
instruction on material element of law deemed excepted to even absent objection
at trial].)
Instructional error in a civil case is prejudicial “ ‘where it seems probable’
that the error ‘prejudicially affected the verdict.’ ” (Soule v. General Motors
Corporation (1994) 8 Cal.4th 548, 580.) The jury here was never instructed that
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plaintiff must prove that he was able to perform the job’s essential duties. For this
reason, defendant was prejudiced by the failure to so instruct, and we believe
defendant is entitled to a new trial, with proper instructions, unless the evidence
shows as a matter of law that plaintiff cannot meet his burden.
III. CONCLUSION
Based on the foregoing, we conclude that under the FEHA, a plaintiff must
demonstrate that he or she was qualified for the position sought or held in the
sense that he or she is able to perform the essential duties of the position with or
without reasonable accommodation. Juries should be so instructed. We therefore
reverse the judgment of the Court of Appeal and remand the matter for
proceedings consistent with this decision.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
BAXTER, J.
CORRIGAN, J.

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C O P Y

GREEN v. STATE OF CALIFORNIA

S137770

DISSENTING OPINION BY WERDEGAR, J.

I respectfully dissent.
The issue in this case is simple: In an action for disability discrimination
under California’s Fair Employment and Housing Act (FEHA) (Gov. Code,
§ 12900 et seq.),2 which party bears the burden of proving that the plaintiff’s
disability did or did not prevent the plaintiff from performing the essential duties
of the job? Is ability to perform an element of the plaintiff’s cause of action or is
inability to perform an affirmative defense for the employer? As I explain below,
although the statutory language at issue (§ 12940, subd. (a)(1)) does not expressly
assign the burden of proof, established principles of statutory interpretation
demonstrate that the reading best according with legislative intent is that inability
to perform the job’s essential duties is a defense on which employers have the
burden of proof.
To reach its contrary conclusion, the majority ignores the statute’s
structure, distorts its legislative and regulatory history, and relies on inapposite
authority. But fundamentally, a single logical error pervades the majority’s
discussion. Because section 12940, subdivision (a)(1) relieves employers from
liability for firing or refusing to hire a disabled person if the disability prevents
that person from performing the position’s essential functions, the majority

2
All further unspecified statutory references are to the Government Code.
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reasons, proof of ability to perform must be part of the plaintiff’s case. (See maj.
opn., ante, at pp. 8-11, 13-14.) This syllogism rests on the false premise that no
affirmative defense exists or can exist to a claim of disability discrimination. In
fact, as I will explain, section 12940 provides for several affirmative defenses,
inability to perform being only one.
In effect, the majority creates a presumption that people with disabilities
cannot perform in the workplace. Certainly, some disabilities prevent the
performance of some jobs, even with reasonable accommodations by the
employer; in those circumstances, the Legislature has relieved employers from any
liability by affording them the affirmative defense provided in section 12940,
subdivision (a)(1). But the rule that individuals with disabilities are presumed
unable to work until they prove otherwise is not one intended by the Legislature.
The majority simply reads it into the statute.
DISCUSSION
I. Under FEHA, Inability to Perform Is an Affirmative Defense
To interpret FEHA in accord with the legislative intent, we start with the
language of the statute. The pertinent language of section 12940 is as follows:
“It shall be an unlawful employment practice, unless based upon a bona fide
occupational qualification . . . :
“(a) For an employer, because of the . . . physical disability, mental 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, or to bar or to discharge the
person from employment or from a training program leading to employment, or to
discriminate against the person in compensation or in terms, conditions, or
privileges of employment.
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“(1) This part does not prohibit an employer from refusing to hire or
discharging an employee with a physical or mental disability, or subject an
employer to any legal liability resulting from the refusal to employ or the
discharge of an employee with a physical or mental disability, where the
employee, because of his or her physical or mental 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.”
The statute makes clear that employers do not face liability under FEHA for
firing or refusing to hire a disabled person who is unable, even with reasonable
accommodations, to perform the essential duties of the position. In this case, for
example, if because of his hepatitis C plaintiff Dwight Green was unable to
perform the essential duties of a stationary engineer at a state prison, defendant
State of California did not violate FEHA by terminating him because of his
disability. The only interpretive question we face is who bore the burden of proof
on that issue—plaintiff or defendant. As nothing in the statute expressly allocates
the burden of proof, I turn to other accepted guides to legislative intent.
A. The burden of proof on an exception ordinarily lies with the party
invoking the exception.
Section 12940, subdivision (a) first prohibits in general terms, and without
any pertinent limitation, adverse employment actions taken because of a person’s
physical or mental disability (as well as, e.g., race, sex and religion). In a new
paragraph (subd. (a)(1)), it then separately provides, as an exception to that
prohibition, that an employer may terminate or refuse to hire a disabled person
where, because of the disability, the person is unable to perform the job’s essential
duties. (See Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1056, fn. 5
[describing inability to perform as an exception to the discrimination prohibition].)
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In a civil case, ordinarily, “[o]ne who claims the benefit of an exception
from the prohibition of a statute has the burden of proving that his claim comes
within the exception.” (2A Singer, Sutherland on Statutes and Statutory
Construction (6th ed. 2006) § 47:11, p. 251; see, e.g., United States v. First City
Nat. Bank (1967) 386 U.S. 361, 366; Da Vinci Group v. San Francisco Residential
Rent etc. Bd. (1992) 5 Cal.App.4th 24, 28.) That interpretive guideline is clearly
applicable to section 12940. Unlike the federal Americans With Disabilities Act
(ADA), which incorporates into its central prohibitory provision a requirement the
plaintiff be able, with reasonable accommodation if necessary, to perform the
position’s essential tasks (see 42 U.S.C. §§ 12112(a) [referring to a “qualified
individual with a handicap” (italics added)], 12111(8) [defining that term]), FEHA
first states an unlimited prohibition against disability discrimination and then
provides an exception for inability to perform. The difference is indicative of
legislative intent. Absent a strong counterindication, I would apply the general
rule that “ ‘ “[o]ne seeking to be excluded from the sweep of the general statute
must establish that the exception applies.” ’ ” (City of Lafayette v. East Bay Mun.
Utility Dist. (1993) 16 Cal.App.4th 1005, 1017; Barnes v. Chamberlain (1983)
147 Cal.App.3d 762, 767.)
B. The various exceptions in section 1294, subdivision (a)(1) should be
construed harmoniously.
We should interpret section 12940, subdivision (a)(1) as a whole, construing
its parts harmoniously and sensibly together and giving closely related provisions
compatible readings if possible. (Troppman v. Valverde (2007) 40 Cal.4th 1121,
1135, fn. 10; Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) The Legislature, in the
same sentence of section 12940, subdivision (a)(1) that contains the inability-to-
perform exception, also set out two health or safety exceptions, removing from the
general disability discrimination prohibition the discharge or refusal to hire a
4

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person who because of his or her disability “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.” These health or safety
exceptions have long been read both administratively and judicially as creating
defenses, on which defendants bear the burden of proof. (Cal. Code Regs., tit. 2,
§ 7293.8, subds. (c), (d); American National Ins. Co. v. Fair Employment &
Housing Com. (1982) 32 Cal.3d 603, 609-610 (American National); Raytheon Co.
v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252; Sterling
Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798-
799.)
Indeed, in American National this court read section 12940, subdivision
(a)(1) as providing essentially a single defense covering both inability to perform
and inability to perform safely and without health risks. While barring disability
discrimination in FEHA, the Legislature, we explained, “made present inability to
perform a particular job efficiently, safely, and without danger to health one of the
few defenses to a charge of discrimination. (§ 12940, subd. (a)(1).)” (American
National, supra, 32 Cal.3d at pp. 609-610.) The majority, ignoring our prior
interpretation in American National, now incongruously treats the sentence’s two
provisions differently, transforming the inability-to-perform portion from a
defense to an element of the plaintiff’s case. Nothing in the statute suggests the
Legislature intended the inability-to-perform exception, uniquely, to be part of the
plaintiff’s case.
The majority’s unharmonious reading also creates a potential for confusion
at trial that the Legislature surely did not intend. An employer’s claim that,
because of disability, the plaintiff was unable to perform is not always
distinguishable from a claim that, because of disability, employing the plaintiff
would have endangered his or her health or safety or that of others in the
5

---

workplace. In the present case, for example, defendant claims plaintiff, because of
his disability, could not keep secure physical control over the inmates with whom
he worked, with possibly “life-threatening” consequences. This is clearly a safety
concern, and on retrial the jury in this case will presumably be given (as it was in
the first trial) BAJI No. 12.16 or an equivalent instruction placing on defendant the
burden to prove the health or safety exception applicable. But at the same time,
according to the majority (maj. opn., ante, at pp. 14-15), the jury must be
instructed that plaintiff bears the burden of showing he can perform the job’s
essential duties—duties that, defendant asserts, include maintaining security over
inmates. How the jury—or any future jury in a similar case—is expected to
follow these contradictory directions is, to say the least, unclear.
C. The Fair Employment and Housing Commission (FEHC) interprets
section 12940, subdivision (a)(1) as providing an affirmative
defense.
The FEHC, the agency charged with adjudicating FEHA enforcement
actions and interpreting FEHA by regulation (§ 12935, subd. (a)), also reads the
statute as establishing an inability-to-perform defense. The FEHC’s 1987
regulation (Cal. Code Regs., tit. 2, § 7293.8, subd. (b) (Code of Regulations
section 7293.8(b)), placed in the same code section as the two health or safety
defenses, provides: “Inability to Perform. It is a permissible defense for an
employer or other covered entity to demonstrate that, after reasonable
accommodation has been made, the applicant or employee cannot perform the
essential functions of the position in question because of his or her disability.”
This regulation, the FEHC explained at the time, would “mak[e] clear that it is the
employer’s burden to prove, in defense of its discrimination, that the handicap
would render the person unable to perform” (FEHC, Notice of Proposed Changes
(Mar. 16, 1987) p. 1); its adoption would conform the commission’s regulations to
6

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section 12940, subdivision (a)(1), which the commission believed “clearly makes
inability to perform a defense.” (FEHC, Final Statement of Reasons for Changes
to Physical Handicap Regulations (Oct. 15, 1987) p. 4.)
The FEHC, employing its expertise developed adjudicating and
administering FEHA, adopted Code of Regulations section 7293.8(b) after
reaching the same conclusion in precedential adjudicative decisions3 and after full
notice, public comment, and deliberation. The commission has maintained its
interpretation consistently for more than 20 years since first adopting it.
An administrative agency’s reasonably contemporaneous statutory
interpretation, adopted by the agency responsible for administering the statute
after full deliberation and consistently maintained since, is entitled to great weight
and will be overturned only if clearly erroneous. (Sara M. v. Superior Court
(2005) 36 Cal.4th 998, 1012-1014; Yamaha Corp. of America v. State Bd. of
Equalization (1998) 19 Cal.4th 1, 12-13.) Following this principle, we have
previously deferred to the FEHC’s regulations and precedential decisions
interpreting FEHA. (Colmenares v. Braemar Country Club, Inc. (2003) 29
Cal.4th 1019, 1029-1030; cf. Gay Law Students Assn. v. Pacific Tel. & Tel. Co.
(1979) 24 Cal.3d 458, 491.) The FEHC’s interpretation of section 12940,
subdivision (a)(1), far from being clearly erroneous, accords with the most
reasonable reading of the statute’s language, as explained above. We should
accord it great weight. (Accord, Ackerman v. Western Elec. Co., Inc. (9th Cir.

3
See Dept. Fair Empl. & Hous. v. Cairo (1984) No. 84-04, FEHC
Precedential Decisions 1984-1985, CEB 3, page 15 (1984 WL 54284 at page *11);
Dept. Fair Empl. & Hous. v. Kingsburg Cotton Oil Co. (1984) No. 84-30, FEHC
Precedential Decisions 1984-1985, CEB 11, page 28 (1984 WL 54310 at
page *21).
7

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1988) 860 F.2d 1514, 1518-1519 [holding, in reliance on Code Reg. § 7293.8(b),
that the burden of proving inability to perform lies with the defendant].)
The majority concedes Code of Regulations section 7293.8(b) “arguably”
places the burden of proof on employers, but insists the regulation is inconsistent
with the statute because the Legislature “has not imposed liability on an employer
if an employee, even a disabled employee, could not perform his or her duties with
or without reasonable accommodation.” (Maj. opn., ante, at pp. 13-14.) Here, the
majority succumbs to the fallacy I identified at the outset. That the employer is
not liable when the employee’s disability renders the employee unable to perform
does not imply ability to perform must be part of the plaintiff’s case; rather,
inability to perform may logically be made a matter of defense.4 The FEHC’s
interpretation of section 12940, subdivision (a)(1) as providing an affirmative
defense is thus not inconsistent with the legislative intent. Indeed, the FEHC’s
interpretation is the most reasonable one, given the statute’s language and
structure.
D. The Legislature, while amending section 12940, subdivision (a)(1),
has acquiesced in the FEHC’s interpretation.
Legislative acquiescence in this long-standing administrative interpretation
supports the conclusion that the FEHC has correctly interpreted section 12940,
subdivision (a)(1). (Sara M. v. Superior Court, supra, 36 Cal.4th at pp. 1014-
1015.) Not once in the 20 years that Code of Regulations section 7293.8(b), the

4
For the same reason, the majority begs the question in arguing that the
burden of proof must logically lie with plaintiffs because, under section 12940,
subdivision (a)(1), disability discrimination is not prohibited unless “the adverse
employment action occurs because of a disability and the disability would not
prevent the employee from performing the essential duties of the job.” (Maj. opn.,
ante, at p. 8.) The fundamental logical flaw in the majority’s reasoning is its
premise that FEHA provides no affirmative defenses to a disability discrimination
claim. As discussed above (pt. I.B.) and below (pt. II.A.), that premise is false.
8

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definitive FEHC regulation, has been on the books—and applied in every
disability discrimination action adjudicated by the agency—has the Legislature
indicated any disapproval. In that time, the Legislature has amended section
12940, subdivision (a)(1) at least once: in 1992, it changed references to
“handicap” to “disability” and substituted the phrase “essential duties even with
reasonable accommodations” for the word “duties.” (Stats. 1992, ch. 913, § 23.1,
p. 4282.)
The majority argues that this change was intended to incorporate into
FEHA the federal ADA’s allocation of burden of proof. (Maj. opn., ante, at p. 9.)
But the ADA expressly allocates the burden of proof by requiring the plaintiff to
prove he or she is a “qualified individual,” defining that phrase to mean an
individual who can perform the job’s essential functions. Had the Legislature
intended to abrogate the FEHC’s construction of section 12940, subdivision (a)(1)
by adopting the ADA’s approach it would presumably have likewise inserted a
“qualified individual” requirement into section 12940, subdivision (a) and defined
that term as in the ADA. Moreover, while the 1992 amendments (a broad act
making changes in public accommodations and housing law as well as
employment) were generally intended to conform FEHA to the recently enacted
ADA, the Legislature made very clear its intent that the ADA was to be a floor for
protection of disabled Californians, not a ceiling. Section 1 of the 1992 act is
explicit: “It is the intent of the Legislature in enacting this act to strengthen
California law where it is weaker than the [ADA] and to retain California law
when it provides more protection for individuals with disabilities than the [ADA].”
(Stats. 1992, ch. 913, § 1, p. 4282.) The majority’s supposition that the 1992
Legislature intended to weaken California’s protections for the disabled by
imposing a new burden of proof on disability discrimination plaintiffs is thus
without foundation.
9

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II. The Majority’s Nontextual Arguments Fail Scrutiny
The majority offers two arguments drawn from outside the text of section
12940, subdivision (a)(1) for placing on plaintiffs the burden of proof regarding
ability to perform: Evidence Code section 500 mandates it, and prior Court of
Appeal decisions support it. Neither withstands analysis.
A. Evidence Code section 500
First, the majority relies on Evidence Code section 500, which the majority
quotes as providing that “ ‘a party has the burden of proof as to each fact the
existence or nonexistence of which is essential to the claim for relief . . . that he is
asserting.’ ” (Maj. opn., ante, at p. 10.) But the majority’s quotation omits a
crucial phrase. The statute actually provides that “a party has the burden of proof
as to each fact the existence or nonexistence of which is essential to the claim for
relief or defense that he is asserting.” (Evid. Code, § 500, italics added.)
Evidence Code section 500 establishes that ordinarily the party to whose case a
fact is essential bears the burden of proving that fact, but the statute “does not
attempt to indicate what facts may be essential to a particular party’s claim for
relief or defense.” (Cal. Law Revision Com. com., reprinted at 29B pt. 1 West’s
Ann. Evid. Code (1995 ed.) foll. § 500 at p. 554.) It does not, therefore, tell us
which facts are part of a disability discrimination claim for relief under FEHA and
which are raised by way of defense.
If there were no possible affirmative defenses to a disability discrimination
claim under FEHA—if every ultimate fact bearing on illegality were necessarily
an element of the plaintiff’s cause of action—then Evidence Code section 500
would support the majority’s position. But affirmative defenses do exist.
Disability discrimination under FEHA is subject to the health or safety defenses of
Government Code section 12940, subdivision (a)(1), discussed earlier in this
opinion, as well as the general defense of “bona fide occupational qualification”
10

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established by the introductory phrase of section 12940.5 Reference to Evidence
Code section 500 thus does not assist in answering the question presented here: Is
ability to perform part of the claim for relief or is inability an affirmative defense?
B. Brundage and the McDonnell Douglas prima facie case
For decisional authority, the majority invokes Brundage v. Hahn (1997) 57
Cal.App.4th 228 (Brundage) and other appellate decisions assertedly following it.
(Maj. opn., ante, at pp. 1, 5.) In doing so, the majority goes astray in two ways:
First, it implicitly confuses the elements of a cause of action under section 12940,
subdivision (a)—the issue presented here—with the requirements for indirect
proof of discriminatory motive by circumstantial evidence (the McDonnell
Douglas prima facie case6 referenced in Brundage)—an issue not involved in this
case. Second, as a consequence of the foregoing, it fails to acknowledge that
Brundage has nothing to say about the issue before us.
In a brief and expressly nondispositive discussion, the Brundage court
stated that one of the ingredients for a so-called McDonnell Douglas prima facie
case for disability discrimination is proof the plaintiff is either “a qualified
individual” or “qualified for the job.” (Brundage, supra, 57 Cal.App.4th at p. 236

5
Section 12940 prohibits discrimination on the specified bases “unless based
upon a bona fide occupational qualification.” A bona fide occupational
qualification is an employer practice that “on its face excludes an entire group of
individuals on a basis enumerated in the Act (e.g., all women or all individuals
with lower back defects),” but which is justified because the employer proves that
“all or substantially all of the excluded individuals are unable to safely and
efficiently perform the job in question and because the essence of the business
operation would otherwise be undermined.” (Cal. Code Regs., tit. 2, § 7286.7,
subd. (a); see West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983-984;
Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal.App.3d 1,
19-20.)
6
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell
Douglas).
11

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& fn. 1.) In the case before it, however, the court held summary judgment was
proper because the undisputed evidence showed the plaintiff was not fired
“because of” her disability (§ 12940, subd. (a)) but for a nondiscriminatory reason
(Brundage, at pp. 236-237); it thus had no occasion to and did not address, even in
dictum, the proper allocation under FEHA of burden of proof on ability to
perform.
The McDonnell Douglas prima facie case referenced in Brundage is
“designed to assure that the ‘plaintiff [has] his day in court despite the
unavailability of direct evidence.’ ” (Trans World Airlines, Inc. v. Thurston
(1985) 469 U.S. 111, 121.) It does not define the elements of the cause of action
and “does not apply in every employment discrimination case. For instance, if a
plaintiff is able to produce direct evidence of discrimination, he may prevail
without proving all the elements of a prima facie case.” (Swierkiewicz v. Sorema
N. A. (2002) 534 U.S. 506, 510, italics added; accord, Trans World Airlines, Inc. v.
Thurston, at p. 121; see also Rizzo v. Children’s World Learning Centers, Inc. (5th
Cir. 1996) 84 F.3d 758, 762 [same as to a disability discrimination plaintiff who
proved discriminatory intent by direct evidence].)
The McDonnell Douglas test is inapplicable here, where plaintiff has
shown by direct (indeed, undisputed) evidence that defendant terminated him
because of his disability. Defendant’s responsible manager told plaintiff at the
time that he could not return to his job as a stationary engineer because, due to his
hepatitis C, he had not been medically cleared for full duty in that position. (Maj.
opn., ante, at pp. 3-4.) The question here was not why the employer took the
action it took, but whether the employer’s admittedly discriminatory decision was
legally warranted, i.e., was justified by plaintiff’s asserted inability to perform.
Irrespective, therefore, of whether a plaintiff generally must show he or she is
“qualified” in order to make a McDonnell Douglas prima facie case, plaintiff here
12

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had no need to do so because he had sufficient direct evidence he was fired
because of his disability.7
Brundage did not hold qualification is an element of the FEHA
employment discrimination cause of action, and indeed it is not. Every disparate-
treatment plaintiff under FEHA must show that the action complained of was
taken “because of” a prohibited basis. (§ 12940, subd. (a).) Where, as in the usual
case, the plaintiff seeks to prove discriminatory intent by circumstantial evidence,
the plaintiff indeed will need to show he or she was qualified for the position (or,
in a termination case, was competently performing the job) in order to make a
prima facie case. But in the relatively rare case where the plaintiff has direct
evidence of discrimination, as where the employer has expressly dismissed or
refused to hire the plaintiff on a prohibited basis, the plaintiff generally need not
also show that he or she can perform.8 This is such a case.

7
The McDonnell Douglas test is also inapplicable here because this appeal
arises not from summary judgment or nonsuit but from a jury verdict. Once an
intentional discrimination case proceeds to jury deliberations, the existence of a
prima facie case plays no role—the jury is not instructed on its requisites.
(Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189,
203-205.)
8
For example, if a restaurant’s manager rejects a female applicant for a wait
staff position with the explanation that “We only hire men as waiters here,” the
rejected applicant can show sex discrimination by direct evidence and need not
also prove that she would have been a competent waitress. She has shown the
adverse action was taken “because of . . . disability” (§ 12940, subd. (a)) and need
not also show qualification, because qualification, while sometimes an ingredient
of the McDonnell Douglas prima facie case, is not an element of the cause of
action.

Similarly, a disabled plaintiff who (as in this case) shows he was told,
“We’re letting you go because your illness makes you unable to do the work” has
proven discrimination by sufficient evidence to get to a jury. The employer may
attempt to show that the discrimination was not illegal because the illness really
did, even with reasonable accommodation, prevent the plaintiff from fulfilling his
13

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For these reasons Brundage and its progeny are inapposite. Indeed, the
only decision (prior to the Court of Appeal’s in this case) that has considered
section 12940, subdivision (a)(1)’s history of administrative interpretation and
rendered a holding on the burden of proof issue is the Ninth Circuit’s decision in
Ackerman v. Western Elec. Co., Inc., supra, 860 F.2d at pages 1518-1519. The
Ackerman court agreed with the FEHC that the burden lay with defendants.
Oddly, this decision the majority completely ignores.
CONCLUSION
The majority’s mandate that persons with disabilities be presumed unable
to work until they prove themselves able is supported by neither the text nor the
history of FEHA. To the contrary, such a presumption is precisely what our
antidiscrimination law was designed to combat. In 1973, when a prohibition on
physical handicap discrimination was first added to former Labor Code section
1420, the predecessor of Government Code section 12940 (together with the
inability-to-perform exception later included in section 12940, subdivision (a)(1)),
the legislative goal was “to create a positive attitude toward employment of the
handicapped and . . . obtain more job opportunities for disabled citizens who are
now on welfare rolls.” (Cal. Health and Welf. Agency, Enrolled Bill Rep. on
Assem. Bill No. 1126 (1973-1974 Reg. Sess.) Sept. 21, 1973, p. 1.) By barring
discrimination on the basis of disability, while allowing employers to defend on
grounds of inability to perform, the Legislature sought to overcome the then
widespread assumption that disabled people had no place in the workplace. Now,

duties (§ 12940, subd. (a)(1)), but in this situation qualification is a matter for
defense, not part of the plaintiff’s case.
14

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by reading into FEHA a requirement that persons with disabilities must prove their
ability to perform before they can complain of discrimination, the majority
effectively endorses this legally discredited assumption. For this reason, I dissent.
WERDEGAR, J.
WE CONCUR:
KENNARD, J.

MORENO, J.
15

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Green v. State of California
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 132 Cal.App.4th 97
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S137770
Date Filed: August 23, 2007
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Ernest George Williams*

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Jacob A. Appelsmith, Assistant Attorney
General, Elizabeth Hong, Vincent J. Scally, Jr., Silvia M. Diaz and Michelle Logan-Stern, Deputy
Attorneys General, for Defendant and Appellant.

Paul, Hastings, Janofsky & Walker, Paul W. Crane, Jr., Katherine C. Huibonhoa and Jaime D. Byrnes for
Employers Group and California Employment Law Council as Amici Curiae on behalf of Defendant and
Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Pine & Pine, Norman Pine, Beverly Tillett Pine; Law Offices of David H. Greenberg and David H.
Greenberg for Plaintiff and Appellant.

Claudia Center, Lewis Bossing and Elizabeth Kristen for Legal Aid Society-Employment Law Center,
Disability Rights Advocates, Disability Rights Education and Defense Fund and The Disability Rights
Legal Center as Amici Curiae on behalf of Plaintiff and Appellant.

Law Office of Jeffrey K. Winikow and Jeffrey K. Winikow for California Employment Lawyers
Association as Amicus Curiae on behalf of Plaintiff and Appellant.

*Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michelle Logan-Stern
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-5745

Norman Pine
Pine & Pine
14156 Magnolia Boulevard, Suite 200
Sherman Oaks, CA 91423
(818) 379-9710

Claudia Center
The Legal Aid Society-Employment Law Center
600 Harrison Street, Suite 120
San Francisco, CA 94107
(415) 864-8848

---

Opinion Information

Date:	Docket Number:
Thu, 08/23/2007	S137770

Disposition
Aug 23 2007	Opinion: Reversed

Dockets
Oct 3 2005	Petition for review filed   by deft-aplt State of Calif. c/a rec req
Oct 13 2005	Received Court of Appeal record   two doghouses
Oct 19 2005	Request for depublication (petition for review pending)   By California Employment Law Council (NON-PARTY).
Oct 24 2005	Answer to petition for review filed   by counsel for (Dwight D. Green)
Nov 16 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 30 2005	Certification of interested entities or persons filed   appellant Dwight Green
Nov 30 2005	Request for extension of time filed   Counsel for appellant requests extension of time to January 30, 2006, to file the opening brief on the merits.
Dec 2 2005	Extension of time granted   Appellant's time to serve and file the opening brief on the merits is extended to and including January 30, 2006.
Dec 6 2005	Certification of interested entities or persons filed   appellant State of California
Jan 19 2006	Request for extension of time filed   opening brief/merits to 2-21-06 Appellant State of California Deputy Attorney General Michelle Logan-Stern
Jan 24 2006	Extension of time granted   Defendant and appellant's time to serve and file the opening brief on the merits is extended to and including February 21, 2006.
Feb 21 2006	Opening brief on the merits filed   appellant, The State of California
Mar 14 2006	Request for extension of time filed   Counsel for appellant requests extension of time to April 22, 2006, to file the answer brief on the merits.
Mar 17 2006	Extension of time granted   Appellant's time to serve and file the answer brief on the merits is extended to and including April 22, 2006.
Apr 14 2006	Request for extension of time filed   counsel for appellant requests extension of time to 4-29-2006 to file the answer brief on the merits.
Apr 20 2006	Extension of time granted   Appellant's time to serve and file the answer brief on the merits is extended to and including April 29, 2006.
May 2 2006	Answer brief on the merits filed   Dwight D. Green, Respondent Norman Pine, Counsel (CRC 40.1b)
May 19 2006	Request for extension of time filed   appellant State of California to file reply brief/merits /requesting June 6, 2006
May 23 2006	Extension of time granted   Appellant's time to serve and file the reply brief on the merits is extended to and including June 6, 2006.
Jun 6 2006	Request for extension of time filed   appellant State of California to file reply brief/merits June 30, 2006
Jun 13 2006	Extension of time granted   Defendant and appellant's time to serve and file the reply brief on the merits is extended to and including June 30, 2006.
Jun 23 2006	Request for extension of time filed   appellant the State of California to file reply brief/merits July 17, 2006
Jun 29 2006	Extension of time granted   Appellant's time to serve and file the reply brief on the merits is extended to and including July 17, 2006.
Jul 17 2006	Reply brief filed (case fully briefed)   counsel for State of Calif.
Aug 2 2006	Received application to file Amicus Curiae Brief   Employers Group and Calif. Employment Law Council in support of State of Calif. w/brief.
Aug 7 2006	Permission to file amicus curiae brief granted   Employers Group et al., in support of defendant and appellant.
Aug 7 2006	Amicus curiae brief filed   Employers Group et al., in support of defendant and appellant. An answer thereto may be served and filed by any party within twenty day of the filing of the brief.
Aug 9 2006	Received application to file Amicus Curiae Brief   California Employment Lawyers Association [app & brief under same cover] in support of respondent State of California attorney, Jeffrey K. Winikow
Aug 16 2006	Received application to file Amicus Curiae Brief   Legal Aid Society, et al., in support of plf. and aplt.
Aug 16 2006	Received:   from Legal Aid Society, et al, Request to file Judicial Notice
Aug 16 2006	Permission to file amicus curiae brief granted   California Employment Lawyers Association in support of plaintiff and appellant.
Aug 16 2006	Amicus curiae brief filed   California Employment Lawyers Association in support of plaintiff and appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 22 2006	Request for judicial notice filed (granted case)   The Legal Aid Society (non-party)
Aug 22 2006	Permission to file amicus curiae brief granted   The Legal Aid Society in support of plaintiff and appellant.
Aug 22 2006	Amicus curiae brief filed   The Legal Aid Society, et al., in support of plaintiff and appellant. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Aug 29 2006	Response to amicus curiae brief filed   counsel for resp. (Dwight Green) (40.1(b))
Aug 29 2006	Request for extension of time filed   Appellant, State of California to file Reply to amicus brief of California Employment Lawyers Assoc. asking to September 30, 2006
Aug 29 2006	Request for extension of time filed   Appellant, State of California to file Reply to amicus brief of The Legal Aid Society et al asking to September 30, 2006
Aug 30 2006	Received:   from The Legal Aid Society letter regarding title correction of amicus curiae application.
Aug 30 2006	Received:   amended declartion of service for Reply to amicus brief one for The Legal Aid Society and, one, for the California Employment Lawyers Assoc.
Aug 31 2006	Extension of time granted   Respondent's time to serve and file the response to amicus briefs of The Legal Aid Society, et al., and California Employment Lawyers Assoc. is extended to and including September 30, 2006.
Oct 2 2006	Response to amicus curiae brief filed   By appellant State of California to A.C. Brief of The California Employment Lawyers' Assoc., and Legal Aid Society
Oct 18 2006	Received:   from counsel for resp. (Green) Notice of vacation scheduled 1-28-07 thru 2-11-07, unavailability for oral argument if case is calendared.
May 2 2007	Case ordered on calendar   to be argued on Thursday, May 31, at 9:00 a.m., in San Francisco
May 16 2007	Order filed   The request of counsel for appellant Dwight D. Green in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amici curiae Legal Aid Society et al. 10 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 31 2007	Cause argued and submitted
Aug 22 2007	Notice of forthcoming opinion posted
Aug 23 2007	Opinion filed: Judgment reversed   Reversed and remanded for further proceedings consistent with this decision. OPINION BY: Chin, J. ----- joined by: George, C.J., Baxter, Corrigan, JJ. DISSENTING OPINION BY: Werdegar, J. ----- joined by: Kennard, Moreno, JJ.
Sep 6 2007	Rehearing petition filed   counsel for plf. and aplt. Dwight D. Green
Sep 11 2007	Time extended to consider modification or rehearing   to and including November 21, 2007, or the date upon which rehearing is granted or denied.
Oct 10 2007	Rehearing denied   Kennard, Werdegar and Moreno, JJ., are of the opinion the petition should be granted.
Oct 10 2007	Remittitur issued (civil case)
Oct 22 2007	Received:   receipt for remittitur.
Aug 27 2008	Note:   record returned to CA 4/2 (3 doghouses)
Sep 3 2008	Received Court of Appeal record   three doghouses

Briefs
Feb 21 2006	Opening brief on the merits filed
May 2 2006	Answer brief on the merits filed
Jul 17 2006	Reply brief filed (case fully briefed)
Aug 7 2006	Amicus curiae brief filed
Aug 16 2006	Amicus curiae brief filed
Aug 22 2006	Amicus curiae brief filed
Aug 29 2006	Response to amicus curiae brief filed
Oct 2 2006	Response to amicus curiae brief filed

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