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City of Moorpark v. Superior Court of Ventura County8/17/1998
Filed 8/17/98
Ventura County
Ct. App. 2/6 B093952
Super. Ct. No. CIV 152607
Labor Code section 132a (section 132a) prohibits employers from discriminating against employees "who are injured in the course and scope of their employment." When an injury of this kind results in disability, we have held that section 132a prohibits discrimination based on the disability. (Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 667 (Judson Steel).) In addition, the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)) prohibits various types of employment discrimination, including discrimination based on a disability. (Gov. Code, § 12921.) Finally, we have recognized a common law protection against certain types of discriminatory or retaliatory termination of employment. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 897 (Stevenson) [age discrimination]; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1097 (Gantt) [retaliation for testifying truthfully]; Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91 (Rojo) [sex discrimination]; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 178 (Tameny) [retaliation for refusal to participate in an illegal price-fixing scheme].) This common law remedy for wrongful discharge arguably extends to disability discrimination, though we have not addressed the issue.
Several Court of Appeal decisions have held that section 132a provides the exclusive remedy for discrimination based on a work-related disability, precluding FEHA or common law wrongful discharge claims. (See, e.g., Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1822; Langridge v. Oakland Unified School Dist. (1994) 25 Cal.App.4th 664, 670; Angell v. Peterson Tractor, Inc. (1994) 21 Cal.App.4th 981, 996-997 (Angell); Usher v. American Airlines, Inc. (1993) 20 Cal.App.4th 1520, 1526-1527; Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1235; Fortner v. Safeway Stores, Inc. (1991) 229 Cal.App.3d 542, 547, 551; Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 1064 (Pickrel).) More recent decisions have reached this Conclusion despite a 1993 amendment to the FEHA that plaintiff argues repealed section 132a, at least in part. Before the 1993 amendment, the FEHA provided: "Nothing contained in [the FEHA] shall be deemed to repeal any of the provisions of . . . any . . . law of this state relating to discrimination because of . . . physical disability mental disability. . . ." (Gov. Code, former § 12993, subd. (a); Stats. 1992, ch. 913, § 25, p. 4325.) The 1993 amendment added the phrase: "unless those provisions provide less protection to the enumerated classes of persons covered under this part." (Gov. Code, § 12993, subd. (a).)
In this case, we consider whether FEHA and common law wrongful discharge remedies are available to an employee who has suffered discrimination based on a work-related disability, meaning, for present purposes, a disability resulting from an injury "arising out of and in the course of the employment" that gave rise to the discrimination. (Lab. Code, § 3600.) We conclude that section 132a does not provide the exclusive remedy for this type of discrimination and that FEHA and common law remedies are available. Factual and Procedural Background
Theresa L. Dillon's complaint alleges that the City of Moorpark employed her as an administrative secretary from May 1990 until February 28, 1994. After she recovered from knee surgery and her doctor released her to return to work, City Manager Steve Kueny terminated her employment, informing her that her residual disability prevented her from performing her essential job functions. Dillon told
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