MacPhail v. Court of Appeal

703 P.2d 374, 39 Cal. 3d 454, 217 Cal. Rptr. 36, 1985 Cal. LEXIS 315, 44 Fair Empl. Prac. Cas. (BNA) 1147

• Court: California Supreme Court
• Decided: August 8, 1985
• Docket: S.F. 24680
• Status: Published

Opinions

Opinion

BROUSSARD, J.

Petitioner Alec Campbell MacPhail brings this original writ proceeding¹ to challenge the validity of the injunction at issue in the related case, State Personnel Bd. v. Fair Employment & Housing Com. (1985) ante, page 422 [217 Cal.Rptr. 16, 703 P.2d 354]. Petitioner MacPhail, who alleges he was discriminatorily rejected from employment by the state, seeks a writ of mandate to vacate the orders of respondents Court of Appeal and superior court, which orders are currently preventing the Department of Fair Employment and Housing (DFEH) and the Fair Employment and Housing Commission (FEHC or Commission) from processing his discrimination claim. MacPhail’s petition is filed on behalf of himself and all other employees of and applicants to the state civil service who are similarly prevented from pursuing employment discrimination claims with DFEH and FEHC under the broad terms of the injunction issued in State Personnel Bd.2

In 1978 and 1981, MacPhail applied for the position of traffic officer cadet with the California Highway Patrol. Like the real parties in interest in State Personnel Bd., MacPhail successfully passed all written and oral examinations, but was subsequently disqualified on the basis of the State Personnel Board’s (Board) medical criteria for the position. MacPhail’s back X-ray allegedly revealed anomalies of the lumbar spine, which the Board bélieved would present a higher than average risk of future back injury. MacPhail protested his disqualification, alleging that he had been an active participant in strenuous competitive athletics since childhood and had never suffered from any discomfort, stiffness, reduced movement or any other symptoms of back problems. MacPhail submitted the reports of four physicians, two of them orthopedic specialists, all finding him completely healthy and fit for the duties of a cadet.

After the Board rejected MacPhail’s appeals in 1979 and 1981, he filed complaints with DFEH charging the Board and the California Highway Patrol with discrimination on the basis of physical handicap.³ DFEH has taken no action on MacPhail’s complaints because it is enjoined from processing any charges of discrimination against the state civil service, under the terms of the injunction issued by the superior court in State Personnel Bd.

MacPhail repeats the arguments made by appellant FEHC and the real parties in interest in State Personnel Bd. (See State Personnel Bd. v. Fair Employment & Housing Com., supra.) To these arguments MacPhail adds the claim that the injunction against DFEH and FEHC denying him access to the adjudicatory procedures to which he is entitled under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) deprives him of a species of property without due process. (See Logan v. Zimmerman (1982) 455 U.S. 422 [71 L.Ed.2d 265, 102 S.Ct. 1148].) MacPhail contends that his “medical appeal” with the Board failed to satisfy the requirements of due process, primarily because the Board is not an impartial adjudicator of the lawfulness of its own employment standards.⁴ He relies centrally on Wong Yang Sing v. McGrath (1950) 339 U.S. 33 [94 L.Ed. 616, 70 S.Ct. 445] and Mennig v. City Council (1978) 86 Cal.App.3d 341 [150 Cal.Rptr. 207].

We need not reach petitioner’s due process claim, however, in view of our decision today in State Personnel Bd. For the reasons explained in that decision, we hereby grant the relief sought by petitioner MacPhail— namely, an order dissolving the injunction that has prevented DFEH and FEHC from moving forward on his complaint.

Let a peremptory writ of mandamus issue commanding respondent superior court to vacate its orders in State Personnel Bd. v. Fair Employment & Housing Com., supra. We reserve jurisdiction for the purpose of considering petitioner’s request for an award of attorney’s fees.

Bird, C. J., and Kaus, J., concurred.

1 Our original jurisdiction is invoked pursuant to California Constitution, article VI, section 10.

2 The order issued by the trial court in State Personnel Bd. permanently enjoined DFEH and FEHC “from initiating, accepting, or issuing any further investigations, complaints, accusations, notices of hearing, subpoenas, or other administrative or legal process in these or any other cases involving state agencies or agencies within the state civil service system under article VII [of the Constitution].”

3 “Physical handicap” is defined in section 12926, subdivision (h) as including “impairment of sight, hearing, or speech, or impairment of physical ability because of amputation of'loss of function or coordination, or any other health impairment which requires special educational or related services.” The term “handicap” is not limited to present disabilities, but also includes physical conditions “that may handicap in the future but have no presently disabling effect.” (American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 610 [186 Cal.Rptr. 345, 651 P.2d 1151].)

Regulations promulgated by the Commission further define a “handicapped individual” as a person whose physical handicap “substantially limits one or more major life activities,” or who “has a record” of such a handicap, or who is “regarded as having” the handicap. (Cal. Admin. Code, tit. 2, § 7293.6, subd. (j).)

Under the Commission’s regulations, an employer may not reject an individual who can presently perform the job duties based on a risk of future injury, so long as the individual is able to perform the job over a reasonable length of time (the length of which is to be determined on an individual basis). (Cal. Admin. Code, tit. 2, § 7293.8, subd. (d).)

An employer may exclude handicapped persons on the basis of class only if the employer proves that “all, or substantially all, persons in that class are unable to perform the job duties safely and efficiently.” (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 797 [175 Cal.Rptr. 548]; Cal. Admin. Code, tit. 2, § 7286.7, subd. (a).)

An employer may also refuse employment to individual handicapped persons who are unable to perform the job duties without endangering the health and safety of themselves or others. (§ 12940, subd. (a)(1); Sterling Transit Co. v. Fair Employment Practice Com., supra, 121 Cal.App.3d at pp. 798-799.)

4 The Civil Service Act (Gov. Code, § 18500 et seq.) prohibits discrimination on the basis of physical handicap, unless it can be shown that the particular handicap is job related. (Gov. Code, § 19702, subd. (a).)