No. S057121






IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA


CITY OF MOORPARK, et al.,


Petitioners, No. S057121

vs.

SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF VENTURA,



Respondent.

___________________________________


THERESA L. DILLON,


Real Party In Interest

____________________________________



PETITION FOR REVIEW FROM COURT OF APPEAL

SECOND DISTRICT, DIVISION SIX, No. B093952


VENTURA COUNTY SUPERIOR COURT No. CIV 152607

THE HONORABLE JOE HADDEN, JUDGE

______________________________________________



REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS

ASSOCIATION (CELA) FOR PERMISSION TO FILE

SUPPLEMENTAL AMICUS CURIAE BRIEF IN

SUPPORT OF RESPONDENT/REAL PARTY IN

INTEREST THERESA DILLON AND

SUPPLEMENTAL AMICUS BRIEF

__________________________________________




JOSEPH POSNER, INC.

[S.B. # 62428]

16311 Ventura Blvd., Suite 555

Encino, CA 91436-4303

(818) 990-1340


Attorney for Amicus Curiae California Employment Lawyers

No. S057121



IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA




CITY OF MOORPARK, et al.,

Petitioners, No. S057121


vs.



SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF VENTURA,



Respondent.

___________________________________



THERESA L. DILLON,


Real Party In Interest

____________________________________




PETITION FOR REVIEW FROM COURT OF APPEAL

SECOND DISTRICT, DIVISION SIX, No. B093952

 

VENTURA COUNTY SUPERIOR COURT No. CIV 152607

THE HONORABLE JOE HADDEN, JUDGE

______________________________________________



REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS

ASSOCIATION (CELA) FOR PERMISSION TO FILE

SUPPLEMENTAL AMICUS CURIAE BRIEF IN

SUPPORT OF RESPONDENT/REAL PARTY IN

INTEREST THERESA DILLON

________________________________________



TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:

The California Employment Lawyers Association (CELA) is an organization composed of attorneys who represent primarily plaintiffs in employment discrimination and related cases. Along with several other organizations, CELA filed an amicus curiae brief in support of respondent/real party in interest Theresa Dillon in early 1997. So did a variety of other organizations and groups. CELA requests permission to file this supplemental brief to discuss Davis v. Dillmeier Enterprises, 956 S.W. 2d 155 (Ark. Nov. 13, 1997), which was published after the briefing in City of Moorpark and the related Cammack v. GTE Corporation case, S056183. Davis is directly on point concerning the issues before the Court in both City of Moorpark and Cammack, and holds that a worker can file a disability discrimination claim regardless of how the disability occurred.

If this request is granted, the following brief is respectfully submitted.

Respectfully submitted,



JOSEPH POSNER, INC.



By__________________________

JOSEPH POSNER,

Attorney for California Employment

Lawyers Association, Amicus Curiae





No. S057121







IN THE SUPREME COURT



OF THE STATE OF CALIFORNIA







CITY OF MOORPARK, et al.,



Petitioners, No. S057121



vs.



SUPERIOR COURT OF THE STATE OF

CALIFORNIA, COUNTY OF VENTURA,



Respondent.

___________________________________



THERESA L. DILLON,



Real Party In Interest

____________________________________





PETITION FOR REVIEW FROM COURT OF APPEAL

SECOND DISTRICT, DIVISION SIX, No. B093952



VENTURA COUNTY SUPERIOR COURT No. CIV 152607

THE HONORABLE JOE HADDEN, JUDGE

______________________________________________



SUPPLEMENTAL AMICUS CURIAE BRIEF IN

SUPPORT OF RESPONDENT/REAL PARTY IN

INTEREST THERESA DILLON

__________________________________________





TO THE HONORABLE CHIEF JUSTICE OF CALIFORNIA AND THE ASSOCIATE JUSTICES OF THE SUPREME COURT:

Davis v. Dillmeier, 956 S.W. 2d 155 (Ark., Nov. 13, 1997) concerns the exact point before the Court in City of Moorpark and the related Cammack case. In September, 1993 Cynthia Davis began work for Dillmeier Enterprises. In October, 1993 and in April, 1994 Ms. Davis sustained bilateral carpal tunnel syndrome, caused by the rapid and repetitive motion in her work-related environment. Her injuries were considered compensable under the workers compensation laws of Arkansas. She underwent medical treatment during which time she continued to perform the essential functions of her job, with or without reasonable accommodations, under limited duties and restrictions. Among other things, her doctors told her to wear a splint, sling or brace and suggested she avoid performing any repetitive motion or any gripping, pulling or pushing for a period of four weeks. In 1995 one of her doctors suggested she be given a light duty job on a trial basis and in August, 1995 her doctors released her from treatment with definite permanent restrictions. When she tried to go back to work, the company fired her. 956 S.W. 2d at 156.

Ms. Davis filed a suit for discrimination based upon a physical disability under the Arkansas Civil Rights Act (ACRA). Dillmeier filed a motion to dismiss her lawsuit on the grounds that exclusive jurisdiction rested with the Arkansas Workers Compensation Commission. The trial court granted the motion but the Arkansas Supreme Court reversed.

On appeal Ms. Davis claimed that workers who are discriminated against because of a disability from work related injury were entitled to just as much protection under the law as workers who became disabled by some other means. She contended that the Workers Compensation Act was never intended to be a vehicle for protecting a worker's civil rights, and pointed out that the damages available under the ACRA were more complete than the remedies offered under the WCA. 956 S.W. 2d at 157. She said that the company's decision to fire her because of her physical disability constituted a new and distinct wrong, for which she was entitled to redress in the civil courts. The Arkansas Supreme Court agreed:

"We conclude that this case presents an issue of employer discrimination, rather than a situation where the employer has refused to return the injured employee to work."

956 S.W. 2d at 158.



ACRA, Section 16-103-107(a) provides in pertinent part that:

"The right of an otherwise qualified person to be free from discrimination because of race, religion, national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

(1) The right to obtain and hold employment without discrimination."

This section is almost a carbon copy of California Government Code Section 12921:

"The opportunity to seek, obtain and hold employment without discrimination because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex or age is hereby recognized as and declared to be a civil right."

The Davis court said that it didn't matter how the disability came about; what mattered was what the employer did about it. Citing Reese v. Sears Roebuck & Company, 107 Wash. 2d 563, 731 P.2d 497 (1987), overruled on other grounds by Phillips v. Seattle, 111 Wash. 2d 903, 766 P.2d 1099 (1989), the Davis court focused on this holding from Reese:

"It is the employer response to the disabled worker that is at issue. Appellants' claimed injuries in this action turn exclusively on the employers' deliberate behavior. For the purposes of the Law Against Discrimination, it does not matter how the handicap arose; only the employer's response to the handicap matters."

956 S.W. 2d at 158, citing 731 P.2d at 502-503.

The Davis court also noted that in Cox v. Glazer Steel Corporation, 606 S.2d 518 (LA 1992), the Louisiana Supreme Court held that an employee who had previously settled a claim for an industrial accident could sue the former employer for discrimination against the handicapped. The Cox court applied the same reasoning expressed by the Washington Supreme Court that the two statutory schemes have different bases. The workers compensation principle excludes the entire concept of employer fault, whereas the civil rights legislation for the benefit of handicapped persons was fault-based legislation, intended to prevent discrimination, prejudice and intolerance. Whereas the workers compensation law provides compensation for accidental injury or death from job-related factors, guaranteeing civil rights for the handicapped is intended to assure the handicapped equal employment opportunity. The two pieces of legislation are directed at different problems. 956 S.W. 2d at 159, citing 606 S.2d at 519-520.

The Davis court concluded that the plaintiff had two separate injuries, the second of which triggered Ms. Davis' right to be protected by the anti-discrimination laws whose purpose was to control employer conduct:

"In this respect, we agree with the reasoning espoused by the Washington Supreme Court that it matters not how the disability came about; rather, the focus should be upon the subsequent deliberate action by the employer in terminating the employee based upon a disability. Additionally, we are persuaded that the rights and remedies provided by both acts are considerably different and serve to fulfil different purposes. Appellant has alleged two separate injuries -- one being a work-related physical injury, for which she has received workers compensation benefits, and one being a subsequent non-physical injury arising from (Dillmeier's) action in terminating her based her physical disability. The first injury is exclusively cognizable under the Workers Compensation Act, while the subsequent injury is of the type envisioned by the Arkansas Civil Rights Act of 1993."

956 S.W. 2d at 161.

CELA and its associated amici made the exact same point at page 35 of its amicus brief of March 7, 1997:

"The FEHA was enacted to control employer conduct. An FEHA disability discrimination case is not dependent upon where or how the individual became disabled. The case is dependent on the employer's response to the disability. The FEHA policy of deterrence (Govt. C. Sec. 12920, 12920.5) is substantially diluted if employers are not subject to broad remedies for discriminatory conduct concerning their injured workers, but are (so subject) if the disability is not work-related."

(Emphasis in original)

For these reasons, CELA respectfully submits that this Court join with the Davis, Reese and Cox courts in affirming the rights of disabled workers to pursue the full panoply of remedies available to them in order to enforce the state's public policy.

Respectfully submitted,



JOSEPH POSNER, INC.



By__________________________

JOSEPH POSNER,

Attorney for California Employment

Lawyers Association, Amicus Curiae



TABLE OF CONTENTS



Page



Table of Authorities ii



REQUEST BY THE CALIFORNIA EMPLOYMENT LAWYERS

ASSOCIATION (CELA) FOR PERMISSION TO FILE

SUPPLEMENTAL AMICUS CURIAE BRIEF IN

SUPPORT OF RESPONDENT/REAL PARTY IN

INTEREST THERESA DILLON 1



SUPPLEMENTAL AMICUS CURIAE BRIEF IN

SUPPORT OF RESPONDENT/REAL PARTY IN

INTEREST THERESA DILLON 3





TABLE OF AUTHORITIES



Case Page



Cox v. Glazer Steel Corporation,
606 S.2d 518 (LA 1992) 6



Davis v. Dillmeier,
956 S.W. 2d 155 (Ark., Nov. 13, 1997) 3



Phillips v. Seattle,
111 Wash. 2d 903, 766 P.2d 1099 (1989) 6



Reese v. Sears Roebuck & Company,
107 Wash. 2d 563, 731 P.2d 497 (1987) 6







Other Authorities



Arkansas Civil Rights Act (ACRA) 4



ACRA, Section 16-103-107(a) 5



California Government Code Section 12921 5









Courtesy copies to:



Fred Ashley, Esq.

2201 Dupont Drive

Suite 710

Irvine, CA 92715



Nancy Bornn, Esq.

233 Wilshire Blvd., Ste. 500

Santa Monica, CA 90401



Mary Dryovage, Esq.

340 Pine Street

Suite 501

San Francisco, CA 94104



Virginia Keeny, Esq.

128 North Fair Oak Ave.

Suite 204

Pasadena, CA 91103



Gary Laturno, Esq.

9255 Towne Center Drive

Suite 520

San Diego, California 92121



Barbara Lawless, Esq.

Phil Horowitz, Esq.

600 Montgomery Street

33rd Floor

San Francisco, CA 94111



Dolores Leal, Esq.

6300 Wilshire Blvd.

Suite 1500

Los Angeles, CA 90048



Cliff Palefsky, Esq.

535 Pacific Avenue

San Francisco, CA 94133



Steven Pingel, Esq.

3020 Old Ranch Pkwy, Ste. 320

Seal Beach, CA 90740



William Quackenbush, Esq.

1700 So. El Camino, Suite 408

San Mateo, CA 94402



Willie Smith, Esq.

2350 West Shaw Avenue, Ste. 154

Fresno, CA 93711





James P. Stoneman, Esq.

100 W. Foothill Blvd.

Claremont, CA 91711



Christopher Whelan, Esq.

11246 Gold Express Dr., Ste. 100

Gold River, CA 95670



Chris Bello, Esq.

2320 Seventh St.

Berkeley, CA 94710



Teri Chaw

National Employment Lawyers Association

600 Harrison St., #535

San Francisco, CA 94107