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Colmenares v. Braemar Country Club2/20/2003
The Fair Employment and Housing Act (FEHA) prohibits employment discrimination based on a physical disability. (Gov. Code, § 12940, subd. (a); see Esberg v. Union Oil, Co. (2002) 28 Cal.4th 262, 267.) In 1997, defendant Braemar Country Club (Braemar) terminated plaintiff Francisco Colmenares, who had been in its employ for 25 years. Colmenares sued, alleging in part discrimination based on physical disability (a bad back), in violation of the FEHA. (§ 12900 et seq.) In May 2000, the trial court granted Braemar's motion for summary judgment on the basis that Colmenares had failed to make a prima facie showing of physical disability. Colmenares appealed.
On January 1, 2001, while the case was before the Court of Appeal, the Prudence Kay Poppink Act (Poppink Act) took effect. The Poppink Act states that "under the law of this state" a person is physically disabled when he or she has a physiological condition that "limits a major life activity" (§ 12926, subd. (k)(B)(i), italics added). In contrast, federal law requires that a disability "substantially limits one or more . . . major life activities" of an individual. (42 U.S.C. § 12102(2)(A), italics added; 29 C.F.R. § 1630.2(g) (2002).) The Court of Appeal refused to apply the Poppink Act to Colmenares because his termination preceded its effective date and at the time of termination, according to the Court of Appeal, the FEHA applied the federal law's narrower definition of physical disability. Because Colmenares had conceded that his back injury did not substantially limit his ability to perform his job , the Court of Appeal concluded that he could not establish a claim for disability discrimination. The Court of Appeal affirmed the trial court's judgment.
Two months later, another division of the same Court of Appeal decided Wittkopf v. County of Los Angeles (2001) 90 Cal.App.4th 1205, review granted October 10, 2001, S103311. There, as here, the plaintiff's claim of discrimination based on physical disability arose before the January 1, 2001, effective date of the Poppink Act. Disagreeing with the Court of Appeal here, the Wittkopf court held that to come within the FEHA's definition of physical disability a plaintiff need only show that the physical impairment limits a major life activity. Wittkopf noted that both before and after the Poppink Act the FEHA's definition of physical disability requires only a mere limitation and not a substantial one. Therefore, Wittkopf held that the Poppink Act had merely clarified existing law on the degree of limitation required and the statute as clarified has no true retrospective effect. We granted review to resolve the conflict between Wittkopf and the Court of Appeal's decision in this case.
I.
We recite the facts as set out in the record before the trial court when it granted defendant's motion for summary judgment. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) In 1972, plaintiff Colmenares began working for defendant Braemar as a general laborer. In 1981, Colmenares injured his back at work. Thereafter, under doctor's orders, Colmenares was given only light duties. In 1982, Braemar promoted him to foreman in charge of a golf course maintenance crew, a position that took his physical limitations into consideration. Performance reviews for Colmenares from 1986, 1987 and 1990 rated his performance as good, and he received raises. Beginning in 1995, a new supervisor began giving Colmenares unfavorable performance reviews. In July 1997, Braemar reassigned Colmenares from supervising a course maintenance crew to supervising a clubhouse construction project that involved heavy labor. In September 1997, Braemar fired Colmenares for "deficiencies in his work performanc
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