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March 2, 2004.


The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge

In this case under California's Fair Employment and Housing Act, plaintiffs contend that defendant United Parcel Service, Inc., discriminated against them by excluding them from working asfull-time, package-car delivery drivers because of an alleged disability, namely, the loss of vision inone eye. The threshold question is whether plaintiffs are disabled within the meaning of FEHA. As Page 2 an issue of first impression under California law, this order holds that plaintiffs are limited in the major life activity of "working" and thus disabled under FEHA.


  Plaintiffs Tim Hancock, Jeffrey Morales, Greg Quiroz and Mark Jensen are monocular individuals. Each is a long-time employee of defendant UPS. The parties do not dispute the evidence with regard to the vision impairment of each plaintiff and this order does not engage in a lengthy discussion of each claimant's personal circumstances.*fn1

  Plaintiffs filed suit against UPS under California's Fair Employment and Housing Act, claiming they were discriminated against and not allowed to work as full-time, package-car delivery drivers based on their vision impairment, an alleged physical disability. This Court found that plaintiffs' cases were related to another action formerly pending before the Court which was brought by the Equal Employment Opportunities Commission on behalf of monocular employees of UPS. The procedural history of that case is extensive and the following is only a summary of those proceedings.

  The EEOC brought that lawsuit alleging that UPS discriminated against individuals with monocular vision in violation of the Americans with Disabilities Act by excluding them from driving smaller package cars below the vehicle-weight limit of the Department of Transportation vision requirement. Four UPS employees thereafter intervened, asserting claims under the ADA as well as FEHA. After a bench trial for four pilot claimants — two members from the plaintiff class and two intervenors — this Court issued extensive findings and conclusions regarding the ADA claims. EEOC v. United Parcel Serv., Inc., 149 F. Supp.2d 1115 (N.D. Cal. 2000). All four claimants were held to be "`disabled' within the meaning of the ADA because UPS `regarded' them as having an impairment that substantially limited their seeing." Id. at 1157. In light of this finding, the Court did not rule on the claimants' FEHA claims, holding that "[t]he resolution of all FEHA claims will be deemed to follow the resolution of all ADA claims." Id. at 1159.

  On appeal, the Ninth Circuit reversed and remanded on the issue of whether three of the pilot claimants were "regarded as" disabled within the meaning of the ADA. EEOC v. United Parcel Page 3 Serv., Inc., 306 F.3d 794 (9th Cir. 2002). The question for remand was whether UPS "regarded them as having an impairment that substantially and significantly limits their overall seeing for purposes of daily life." Id. at 806. On remand, this Court found that, under the test stated by the Ninth Circuit, the pilot claimants were not "disabled" within the meaning of the ADA. Accordingly, judgment was entered in favor of UPS and against the three pilot claimants on their federal disability claims.

  The Court then considered whether any of the original four intervenors in the case were entitled to relief under California's FEHA statute. In two orders, dated May 2, 2003, and July 31, 2003, respectively, the Court held that one of the claimants was not qualified for the driving position he sought and therefore was not entitled to relief under FEHA. The remaining three claimants were not entitled to relief because they were not disabled in the major life activity of "seeing." Neither were any of the claimants entitled to recover on the theory that they were "regarded as" disabled in the major life activity of "seeing." Although all four claimants also asserted that they were disabled under FEHA by virtue of their limitation in the major life activity of "working," the Court found that the claimants had abandoned the "working" theory in prior litigation. As such, the Court rejected the claimants' attempt to revitalize the "working" claim.

  The instant cases are separate from the EEOC case (now back on appeal) but are consolidated with each other. Plaintiffs have now moved for partial summary judgment. Plaintiffs seek judgment on their claims that they are disabled in the major life activity of "working," or alternatively, that UPS regards them as disabled in "working." UPS has filed a summary-judgment motion of its own. It urges that plaintiffs are not limited in "working" or "seeing" and that UPS does not regard plaintiffs as limited in either major life activity. UPS contends, however, that even if plaintiffs are disabled they still cannot recover because they are not qualified and cannot be accommodated, among other reasons.


  The question presented is whether plaintiffs are disabled within the meaning of FEHA. The circumstances here require the Court to determine whether a claimant is limited in "working," and hence disabled under FEHA, if the claimant is unable (due to an impairment) to perform a single job for a single employer. The California courts have not yet spoken on the issue. At the hearing on this Page 4 matter, both sides agreed that the particular question raised a pure issue of law that could be resolved on the summary-judgment record without a trial.


  An individual bringing suit under FEHA bears the burden of establishing that he or she is protected by the statute. FEHA protects individuals with a physical disability. Cal. Gov't Code 12926(k). A physical disability under FEHA is defined as an impairment that limits an individual's ability to participate in a major life activity. Colmenares v. Braemer Country Club, Inc., 29 Cal.4th 1019, 1025 (2003). In other words, unlike the ADA, FEHA does not require that an impairment substantially limit a major life activity. Ibid. An impairment "limits a major life activity if it makes the achievement of the major life activity difficult." Cal. Gov't Code 12926(k)(1)(B)(ii). "Working" is recognized as a major life activity. Of particular importance here, "`working' is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Id. at 12926. l(c) (emphasis added). This FEHA caveat separates FEHA from the ADA, the latter not including such language.

  Plaintiffs' main theory is that they are limited in their particular employment at UPS. Because of their impaired vision in one eye, plaintiffs contend that UPS has denied them full-time, package-car driving positions. The argument is that the inability to perform one particular job at a particular place of employment constitutes a limitation on the major life activity of "working." UPS disagrees. It contends that plaintiffs' ineligibility for a single job is insufficient to show that working is more difficult for plaintiffs as compared to the general public. According to UPS, plaintiffs' interpretation of FEHA would allow all working individuals in California to assert claims of disability in an employment in which they are ineligible for any position by reason of an impairment.

  The resolution of this matter turns on what the California Legislature intended when it amended the FEHA statute in January 2001.*fn2 The amendment codified the Prudence Kay Poppink Act at Section 12926.1 of the California ...

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