EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Shawn Hogya, James Francis, James Akins, and Chris Wilson, Intervenors-Appellants, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. Larry Bryan and Ignacio Torres, Plaintiffs-Appellants, and Tim Hancock, Jeff Morales, Creg Quiroz, and Mark Jensen, Plaintiffs, v. United Parcel Service, Inc., Defendant-Appellee. Larry Bryan, Tim Hancock, Jeff Morales, Ignacio Torres, Creg Quiroz, and Mark Jensen, Plaintiffs-Appellees, v. United Parcel Service, Inc., Defendant-Appellant.
Nos. 03-16855, 04-15928, 04-16403
United States Court of Appeals, Ninth Circuit
Argued and Submitted May 10, 2005 (Nos. 03-16855, 04-16403). Submitted May 10, 2005 (No. 04-15928). Filed Sept. 15, 2005.
424 F.3d 1060
III.
In sum, we conclude that careful removal of the interior door panels of Hernandez‘s vehicle was not a destructive search that required reasonable suspicion prior to conducting the search. Nor did the district court abuse its discretion in refusing to conduct an evidentiary hearing on the matter.
AFFIRMED.
Mark A. Perry, Gibson, Dunn & Crutcher LLP, Washington, D.C., and Kathrin
Claudia Center and Elizabeth Kristen, The Legal Aid Society Employment Law Center, San Francisco, CA, for the amici curiae.
Before: KLEINFELD, HAWKINS, and GRABER, Circuit Judges.
GRABER, Circuit Judge.
Defendant United Parcel Service, Inc. (“UPS“), denied driving positions to certain employees because the employees failed to pass UPS‘s “Vision Protocol,” which requires drivers to have some central vision and some peripheral vision in each eye. In two separate actions, the employees alleged that UPS had discriminated against them because of their monocular vision, a disability, in violation of California‘s Fair Employment and Housing Act (“FEHA“).
We hold that the employees are sufficiently limited in the major life activities of seeing and working to fall within FEHA‘s broad definition of disability. We therefore affirm, on interlocutory appeal, the district court‘s partial summary judgment on the issue of disability in favor of the employees in one action. But, for the other group of employees, who appeal from the district court‘s final judgment after a bench trial, the threshold disability determination is not dispositive. Although those employees likewise are disabled within the meaning of FEHA, we affirm the judgment in favor of UPS because UPS has demonstrated that the employees would “endanger the health or safety of others to a greater extent than if an indi-vidual without a disability performed the job” and, thus, has satisfied FEHA‘s safe-ty-of-others defense. See
FACTUAL AND PROCEDURAL HISTORY
Factual background1
Monocular vision generally results in a decrease in peripheral vision: An average monocular individual has a field of view that is 10 to 40 degrees less than the field of view of an average binocular individual. EEOC v. United Parcel Servs., Inc., 149 F.Supp.2d 1115, 1142 (N.D.Cal.2000) (“EEOC“), rev‘d in part, 306 F.3d 794, 797 (9th Cir.2002); see also id. (“Normal binocular vision spans a field of view of 160 to 180 degrees, whereas normal monocular vision spans 140 to 150 degrees.“). Central vision acuity, on the other hand, is not affected by lack of vision in one eye—a monocular individual with 20/20 vision in one eye can see as well looking straight ahead as a binocular individual with 20/20 vision. See id. at 1141-42.
Other than decreased peripheral vision, the primary difficulty that monocular individuals experience is with near-field depth perception. “Individuals who can see out of only one eye are unable to perform stereopsis, the process of combining two retinal images into one through which two-eyed individuals gain much of their depth perception, particularly at short dis-
Before 1988, the federal Department of Transportation (“DOT“) regulated all commercial vehicles regardless of weight, and DOT regulations barred monocular individuals from driving even small commercial vehicles. EEOC, 149 F.Supp.2d at 1130. By July 1995, however, DOT had changed its rules to exempt lightweight commercial vehicles from federal regulation. Id. Thus, under the existing DOT rules, monocular individuals are permitted to drive commercial vehicles weighing 10,000 pounds or less. See
Defendant UPS employs about 70,000 people to drive package cars that pick up and deliver packages along established routes. EEOC, 149 F.Supp.2d at 1122. Most employees of UPS must start in part-time, entry-level loading positions and accumulate seniority in order to bid to become part-time, then full-time, package car drivers. Id. at 1123-24. The vast majority of UPS package cars weigh more than 10,000 pounds and, therefore, are subject to DOT regulations. Id. at 1124. Specifically, the district court found that only 5,511 of UPS‘s 67,178 package cars weigh 10,000 pounds or less. Id. Some established routes are served by those lighter vehicles. Id. at 1125. The monocular employees involved in these cases seek to drive only the lighter package cars for which DOT certification is not required.
UPS generally requires all driver applicants to pass DOT‘s vision standards, because they will be asked to drive routes served by both heavy (DOT-regulated) and light (non-regulated) package cars. See id. at 1128. Beginning in 1995, however, UPS made an accommodation that would allow vision-impaired applicants to drive nonregulated cars if they passed a “Vision Protocol.” The Vision Protocol is less rigorous than the vision standards that DOT requires drivers of the regulated cars to satisfy. Id. at 1133. DOT‘s standards for regulated vehicles require visual acuity of 20/40 and peripheral vision of 70 degrees in each eye. Id. at 1129-30, 1133. The Vision Protocol, as relevant here, requires:
- 20/40 (corrected or uncorrected) in the better eye;
- 20/200 (corrected or uncorrected) in the affected eye;
- peripheral vision of 70 degrees in each eye or a combined horizontal visual field of 140 degrees; and
- peripheral acuity of at least 20/200 in each eye.
UPS‘s application of the Vision Protocol to deny driving positions to monocular employees prompted the actions leading to the three appeals that are now before us. We turn now to the procedural history of those three appeals.
No. 03-16855: Intervenors Hogya, Francis, Akins, and Wilson
In March 1997, the Equal Employment Opportunity Commission (“EEOC“) filed an action against UPS on behalf of more than 100 monocular driver applicants, alleging discrimination in violation of the Americans with Disabilities Act,
At the conclusion of that trial, the district court entered a final judgment and issued a lengthy published opinion that includes numerous findings of fact. The court‘s principal legal conclusions were (1) that all the plaintiffs and Intervenors were either disabled or “regarded as” disabled under the ADA, EEOC, 149 F.Supp.2d at 1156-58; (2) that Hogya (but not Francis) had proved that he was qualified to perform the job‘s essential function of safe driving, id. at 1158-59; and (3) that UPS had not satisfied the ADA defense by proving that its Vision Protocol was “job-related and consistent with business necessity,” under
On appeal, we reversed the district court‘s threshold disability determinations under the ADA. EEOC v. United Parcel Serv., Inc., 306 F.3d 794, 797 (9th Cir. 2002). We held (1) that the pilot claimants were not disabled, because their monocularity did not keep them “from using [their] eyesight as most people do for daily life,” id. at 803; and (2) that, in order to establish that they were “regarded as” disabled, the employees must prove that UPS perceived them as limited in their activities of daily life, not merely in their employment (as the district court had held), id. at 806. Rather than decide whether UPS regarded monocular employees as disabled with respect to their daily activities, we acknowledged the district court‘s greater familiarity with the evidence and remanded for the district court to consider that issue in the first instance. Id.
“Because the existence of a ‘disability’ is a gateway requirement for the ADA,” we did not comment on the other issues raised in the appeal and cross-appeals—most significantly, on UPS‘s defenses to liability. See id. at 797. We did note that, if the district court were to hold on remand that no claimant was regarded as disabled under the ADA, the court would have to decide whether the employees were disabled under FEHA. Id. at 806. We retained jurisdiction over any future appeals and stated that “briefing submitted on other issues in the present appeal and cross-appeals will be deemed submitted in any such future appeal as well.” Id. at 806 n. 6.
As we anticipated, on remand the district court held that none of the employees was regarded as disabled under the ADA and proceeded to address Intervenors’ claims under FEHA. The court held, on the basis of the trial record, that Hogya is neither disabled nor regarded as disabled under FEHA and that Francis was not qualified to perform the job of package car driver. The claims of Intervenors Akins and Wilson had not been adjudicated in the court‘s earlier bench trial, but the court determined on summary judgment that they are neither disabled nor regarded as disabled under FEHA. In evaluating
Intervenors appeal the district court‘s final judgment and, in response, UPS argues that the district court correctly concluded that Intervenors are not disabled under FEHA. In the alternative, UPS asks us to affirm the judgment in its favor because the Vision Protocol can be justified under FEHA‘s business necessity or safety-of-others defense.
No. 04-16403: Plaintiffs Hancock, Jensen, Morales, and Quiroz
In May 2001, five Plaintiffs (Larry Bryan, Tim Hancock, Jeff Morales, Creg Quiroz, and Ignacio Torres) filed an action alleging disability discrimination under FEHA only; a later, similar action by a sixth Plaintiff, Mark Jensen, was consolidated with the Bryan action in the district court.
The Bryan/Jensen Plaintiffs filed a motion for partial summary judgment on the issue of disability, arguing that they are limited in the major life activity of working or, alternatively, that they are regarded as such. The district court granted the motion, holding that Plaintiffs’ exclusion from the single job of full-time package car driver at UPS demonstrated a limitation in working under FEHA. The district court certified the following question to us for interlocutory appeal: “whether this record shows that plaintiffs are disabled in the major life activity of ‘working’ within the meaning of FEHA and
No. 04-15928: Plaintiffs Bryan and Torres
Plaintiffs Larry Bryan and Ignacio Torres voluntarily dismissed their claims because they had not exhausted their administrative remedies. The district court ordered Plaintiffs’ counsel to pay attorney fees to Defendant because of counsel‘s delay in dismissing the claims. Plaintiffs and their counsel appeal the award of attorney fees.
To summarize:
In the Hogya action, No. 03-16855, the district court held that Intervenors Shawn Hogya, James Akins, and Chris Wilson are neither disabled nor regarded as disabled with respect to the major life activity of seeing. Because of two driving accidents, the court held that Intervenor James Francis was not qualified for the position. Intervenors appeal from a final judgment, and we have jurisdiction under
In the Bryan action, No. 04-16403, the district court held that Plaintiffs Tim Hancock, Mark Jensen, Jeff Morales, and Creg Quiroz are disabled with respect to the major life activity of working. Defendant appeals interlocutorily from a partial summary judgment, and we have jurisdiction under
Also in the Bryan action, No. 04-15928, the district court ordered Plaintiffs’ counsel to pay attorney fees to Defendant be-cause of counsel‘s delay in dismissing the
STANDARDS OF REVIEW
Plaintiffs Hogya and Francis appeal from judgment following a bench trial. A district court‘s interpretation of state law is reviewed de novo. Goldman v. Standard Ins. Co., 341 F.3d 1023, 1026 (9th Cir.2003). Mixed questions of law and fact generally are reviewed de novo. Star v. West, 237 F.3d 1036, 1038 (9th Cir.2001). If, however, the application of the law to the facts requires an inquiry that is essentially factual, review is for clear error. Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002). Issues of fact are reviewed for clear error. Id.
By contrast, Plaintiffs Akins and Wilson in the Hogya action, and Defendant in the Bryan action, appeal from orders granting summary judgment and partial summary judgment, respectively. We review de novo a grant of summary judgment. Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1064 (9th Cir.2002) (en banc). We must view the evidence in the light most favorable to the nonmoving party and decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. When a mixed question of fact and law involves undisputed underlying facts, summary judgment may be appropriate. Colacurcio v. City of Kent, 163 F.3d 545, 549 (9th Cir.1998).
An award of attorney fees under
DISCUSSION
The principal questions that we will address in this opinion, all pertaining to FEHA only, are: (1) whether Intervenors are disabled with respect to the major life activity of seeing; (2) whether Plaintiffs are disabled with respect to the major life activity of working; (3) whether UPS can avoid liability because of an affirmative defense; and (4) whether the district court abused its discretion by awarding attorney fees to UPS. We conclude that Intervenors and Plaintiffs have established a disability under FEHA,4 but that UPS can avoid liability in the Hogya action under FEHA‘s safety-of-others defense. Finally, we conclude that the district court made an error of law, and therefore abused its discretion, in awarding attorney fees.
I. Intervenors’ and Plaintiffs’ monocularity is a “physical disability” under FEHA.
The threshold question in a FEHA action is whether the plaintiff‘s qualifying medical condition “[l]imits a major life activity.”
The current version of FEHA spells out, in some detail, how courts are to assess limitations on a major life activity:
For purposes of this section:
(i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.
(a) The law of this state in the area of disabilities provides protections independent from those in the federal [ADA]. Although the federal act provides a floor of protection, this state‘s law has always, even prior to passage of the federal act, afforded additional protections.
(b) The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definition[] of physical disability . . . be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical impairment that is disabling . . . or potentially disabling.
(c) . . . [T]he Legislature has determined that the definition[] of “physical disability” . . . under the law of this state require[s] a “limitation” upon a major life activity, but do[es] not require, as does the [ADA], a “substantial limitation.” This distinction is intended to result in broader coverage under the law of this state than under that federal act. Under the law of this state, whether a condition limits a major life activity shall be determined without regard to any mitigating measures, unless the mitigating measure itself limits a major life activity, regardless of federal law under the [ADA]. Further, under the law of this state, “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.
The California legislature enacted the quoted text in the Poppink Act of 2000. Although the Poppink Act‘s amendments to FEHA were not expressly made retro-active, the California Supreme Court ruled in Colmenares v. Braemar Country Club, Inc., 29 Cal.4th 1019, 1028, 130 Cal.Rptr.2d 662, 667, 63 P.3d 220, 224 (2003), that the Poppink Act was “intended . . . to clarify the degree of limitation required for physical disability under the FEHA.” (Empha-sis added.); see also id. at 1030, 130 Cal.Rptr.2d at 669-70, 63 P.3d at 226 (“Thus,
Textual differences between the current FEHA statute and the statute that was in effect when Intervenors filed their action do not change our analysis. As noted, the Poppink Act has been interpreted by California‘s highest court as an effort simply to clarify the “true meaning” of FEHA‘s limits test. Id.; see also Goldman, 341 F.3d at 1032-33 (“[W]here a statute is unclear, a subsequent expression of the Legislature bearing upon the intent of the prior statute may be properly considered in determining the effect and meaning of the prior stat-ute.” (quoting Tyler v. State, 134 Cal.App.3d 973, 977, 185 Cal.Rptr. 49, 51-52 (1982))). In particular, we perceive no meaningful difference between the “limits” test described in Colmenares and the al-ternative “unusually difficult” standard that previously was incorporated into the FEHA statute and that was emphasized by the district court in this case. See Am. Nat‘l Ins. Co. v. Fair Employment & Hous. Comm‘n, 32 Cal.3d 603, 609, 186 Cal.Rptr. 345, 349, 651 P.2d 1151, 1155 (1982) (defining “physical handicap” to mean “a condition of the body” that has the “disabling effect” of making ” ‘achieve-ment unusually difficult’ “).
In view of the legislature‘s express intent to provide broad coverage, we conclude that Intervenors are limited in the major life activity of seeing and that Plaintiffs are limited in the major life activity of working.
A. Intervenors are limited in the major life activity of seeing.
Intervenors have explained that their monocularity—and, in particular, their inability to perform stereopsis—makes a variety of close-range activities difficult for them. Akins and Wilson stated, in affidavits submitted in response to UPS‘s motion for summary judgment, that they are “unable” to perform or “have great difficulty” performing near-field tasks, including “inserting small objects into small holes or slots, screwing small objects into or onto another, tying knots, catching small objects, pouring liquid from one container to another, striking small objects and manipulating small tools or objects,” without using their sense of touch and feel to substitute for their lack of depth perception. Hogya testified that, although he has trained himself to do most of the things that are important to his everyday life, he still “does not do things as fast as other people or as well” and that “there‘s always something new that comes up to me that is different for me, and it does place a difficulty on me.” EEOC, 149 F.Supp.2d at 1151; see also id. at 1146 (de-scribing Francis’ difficulties with certain near-field tasks, including handling tools).
Nonetheless, the district court concluded that Intervenors are not disabled under FEHA because seeing was not “unusually difficult” for them when compared with the general population—and, in particular, with farsighted individuals who also have difficulty seeing at close range.6
We agree with Intervenors that the district court‘s conclusion was incorrect as a matter of law. Judging depths at near distances is a significant aspect of the major life activity of seeing. As the affidavits and testimony demonstrate, near-field depth perception is important to a number of activities that sight normally is used to perform. “[T]he FEHA does not require that the disability result in utter inability or even substantial limitation on the indi-vidual‘s ability to perform major life activi-ties. A limitation is sufficient.” DFEH v. Cal. Dep‘t of Corr., Dec. No. 03-11, 2003 WL 22733898, at *8 (Cal.F.E.H.C.2003). Indeed, in its recent decision in Colmenares, the California Supreme Court expressly disapproved an appellate court‘s holding that the employee could not prove his case because he offered evidence of “only minor limitations.” 29 Cal.4th at 1031 n. 6, 130 Cal.Rptr.2d at 670 n. 6, 63 P.3d at 226 n. 6 (disapproving Hobson v. Raychem Corp., 73 Cal.App.4th 614, 629, 86 Cal.Rptr.2d 497, 507 (1999)).
Indeed, the California Fair Employment and Housing Commission (“FEHC“) has held specifically that a monocular individu-al was disabled under FEHA. See DFEH v. City of Merced Police Dep‘t, Dec. No. 88-20, 1988 WL 242649, at *4 (Cal. F.E.H.C.1988) (concluding that a monocu-lar individual was disabled under FEHA). Intervenors’ limitations are materially in-distinguishable from the limitations experi-enced by the monocular individual in City of Merced.
In deciding whether Intervenors’ limitations, similarly, make them “dis-abled” under FEHA, the proper compar-ative baseline is either the individual without the impairment in question or the average unimpaired person. For example, several FEHC decisions rely on medical evidence that demonstrates a limitation relative to the individual‘s own unimpaired state. See, e.g., Cal. Dep‘t of Corr., 2003 WL 22733898, at *8 (noting, among other things, a “25 percent reduc-tion of [the complainant‘s] former capaci-ty to lift“); DFEH v. Albertson‘s, Inc., Dec. No. 03-05, 2003 WL 1244475, at *12 (Cal.F.E.H.C.2003) (noting, among other things, that the complainant had “lost ap-proximately 50% of her preinjury capaci-ty” for manual tasks). In citing that evi-dence, neither decision asked whether the claimant‘s preinjury capacity was “aver-age” or “above average.” But implicit comparisons with the normal or average population also appear in the Commis-sion‘s decisions. In citing evidence that the complainants had difficulty with tasks such as dressing and sleeping, the FEHC implicitly presumes that most people can perform those tasks without difficulty. See, e.g., Cal. Dep‘t of Corr., 2003 WL 22733898, at *8. And, in at least one deci-sion, the FEHC made explicit this inher-ent comparison with a “normal” or “aver-age” baseline. In DFEH v. Jefferson Smurfit Corp., Dec. No. 98-01, 1997 WL 840033, at *5 (Cal.F.E.H.C.1997), a limi-tation to a 40-hour work week was held not to limit a major life activity because 40 hours is “considered a full work week in our culture.”
By contrast, we have found no FEHC decisions that assess whether the com-plainant‘s limitations were worse than those of other impaired people. For in-stance, the FEHC noted that a complain-ant‘s bursitis and muscle strain “interrupt-ed her ability to sleep.” Cal. Dep‘t of Corr., 2003 WL 22733898, at *8. But the FEHC did not contemplate that the com-
In short, under FEHA and its relevant interpretations, the district court erred by holding that Intervenors are not limited in the major life activity of seeing simply because other people with common vision impairments are also limited.7 Interve-nors demonstrated that seeing, and a vari-ety of tasks for which seeing is commonly used, are made difficult for them because of their monocularity and consequent ina-bility to perform stereopsis. FEHA re-quires no more.
B. Plaintiffs are limited in the major life activity of working.
The Bryan Plaintiffs contend that their monocularity limits them in working. In the Poppink Act, the California legisla-ture expressly recognized “working” as a major life activity,
The terms “class of jobs” and “broad range of jobs” have commonly un-derstood meanings in federal employment law. “To be substantially limited in the major life activity of working,” ADA plain-tiffs must show that they are precluded from a “substantial class of jobs” or a “broad range of jobs.” Sutton, 527 U.S. at 492, 119 S.Ct. 2139. Federal regulations define the term “class of jobs” as “jobs utilizing . . . training, knowledge, skills or abilities” similar to the job from which the plaintiff is disqualified.
The district court correctly ruled that the California legislature acted against this federal backdrop. In fact, the context of the legislature‘s statement about working in
UPS attempts to defeat this close paral-lel by arguing that the word “employment” means “occupation” and not “job,” and therefore the legislature was not respond-ing to Sutton‘s “single job” holding. In fact, “employment” can be used both in the sense of a general occupation and in the sense of a particular job. See Webster‘s Third New Int‘l Dictionary 743 (una-bridged ed.1993) (defining “employment” as an “activity in which one engages and employs his time and energies: as . . . work (as customary trade, craft, service, or vocation)” OR as “an instance of such ac-tivity“). Thus, dictionary definitions are less helpful than the background federal law in determining the legislature‘s intent.
Even if the district court interpreted “particular employment” too narrowly, however, we still would have to affirm its partial summary judgment for Plaintiffs with respect to working. Plaintiffs demon-strated that they are limited in working as commercial delivery drivers, not only be-cause they are excluded from working as full-time package car drivers for UPS, but also because they are excluded from any commercial driving position that requires DOT8 or state9 certification. Thus, even if “particular employment” is interpreted more broadly than “single position with a single employer,” Plaintiffs’ monocularity limits their ability to work in the occupa-tion of commercial delivery driver.
The fact that Plaintiffs are eligible for other commercial driving positions, such as those that require only a Class C driver‘s license in California,
In sum, we affirm the district court‘s partial summary judgment in the Bryan action because Plaintiffs are limited in working as commercial delivery driv-
II. UPS satisfied FEHA‘s safety-of-others defense.
FEHA “does not prohibit an employer from refusing to hire or dis-charging an employee . . . where the em-ployee, because of his or her . . . disability . . . cannot perform [the job‘s essential] duties in a manner that would not endan-ger . . . the health or safety of others even with reasonable accommodations.”
It is a permissible defense for an em-ployer or other covered entity to demon-strate that after reasonable accommoda-tion has been made, the applicant or employee cannot perform the essential functions of the position in question in a manner which would not endanger the health or safety of others to a greater extent than if an individual without a disability performed the job.
Applications of this defense by the Cali-fornia courts and the FEHC convince us that the defense is satisfied with respect to Intervenors here. The decisions demon-strate that even a modest increase in the risk that a problem will occur is significant when the potential consequences of that problem are very serious. For example, the Commission decided that a 25 percent chance that a truck driver‘s herniated discs could cause symptoms in the future, possibly including paralysis or disabling pain, was sufficient to establish a “signifi-cant potential for harm to others” in the event that the symptoms appeared while he was driving was sufficient to establish the defense. DFEH v. Di Salvo Trucking Co., Dec. No. 87-14, 1987 WL 114862, at *8 (Cal.F.E.H.C.1987). Likewise, because “[c]onstant mental alertness is an essential requisite of operating a locomotive and train,” a train engineer who was suscepti-ble to dizziness and blackouts posed a sig-nificantly greater danger to others despite
Similar safety considerations justified the imposition of weight requirements for ambulance drivers in McMillen v. Civil Service Commission, 6 Cal.App.4th 125, 8 Cal.Rptr.2d 548 (1992). The employer in that case presented studies demonstrating that “excess fat” or obesity could affect agility and the ability to lift and climb, cause fatigue, and create a risk of back injury; “[b]ecause sudden incapacitation of an ambulance driver could be life-threaten-ing,” the employer imposed weight limita-tions on its ambulance drivers. Id. at 128, 8 Cal.Rptr.2d at 549. The court held that such limitations “may be prescribed by an employer where there is a rational basis for such limitations, as shown by support-ive analytical factual data rather than ster-eotypical generalizations.” Id. at 130, 8 Cal.Rptr.2d at 550. The employee‘s fail-ure to meet the weight requirements “posed a risk which, based on the studies the department had before it, could not be countenanced.” Id. at 131, 8 Cal.Rptr.2d at 551. The court stated:
We agree with the trial court‘s observa-tion that the department need not wait for disaster to strike before taking ac-tion: the department owes a duty to the public and its employees affirmatively to avert disaster, rather than simply wait and hope it does not occur.
Id.; see also Hegwer v. Bd. of Civil Serv. Comm‘rs, 5 Cal.App.4th 1011, 1025, 7 Cal.Rptr.2d 389, 397-98 (1992) (finding that statistical studies justified weight limita-tions for paramedics under FEHA, that the [employee]‘s loss of agility and endur-ance demonstrated a danger to the safety of others, and that “[g]reater imminency of disaster is not required to meet standards of reasonableness“).
Finally, in a decision frequently cited by Intervenors in support of their threshold showing of disability, the FEHC deter-mined that a monocular applicant for a position as a police officer “posed a signifi-cantly greater risk to the health and safety of others than a police officer with binocu-lar vision.” City of Merced, 1988 WL 242649, at * 5. The Merced Police Depart-ment presented an “extraordinary show-ing” through two expert witnesses who testified, with reference to medical publica-tions and vision validation studies, that binocularity was required for the safe per-formance of the job of police patrol officer. Id.
We acknowledge that FEHA‘s safety-of-others defense requires an indi-vidualized showing that safety would be compromised by each Intervenor‘s per-formance of driving duties. See, e.g., Sterling Transit Co. v. Fair Employment Practice Comm‘n, 121 Cal.App.3d 791, 796, 175 Cal.Rptr. 548, 551 (1981) (applying the danger-to-self defense); DFEH v. City of San Jose, Dec. No. 84-18, 1984 WL 54298, at *10 (Cal.F.E.H.C.1984) (“Like the de-fense of danger to the complainant, the defense of danger to others must be specif-ic to the particular complainant before us.“). But the FEHC also has stated that “[t]here is no ground for barring the appli-cation of categorical evidence” to individu-alized defenses, such as the safety-of-oth-ers defense. DFEH v. Orange County Sheriff-Coroner Dep‘t, Dec. No. 82-26, 1982 WL 36770, at *4 (Cal.F.E.H.C.1983). Categorical evidence can be relevant—as it was in McMillen and City of Merced—so
We agree with UPS that the safety-of-others defense is established here. The district court concluded that “the literature generally supports the proposition that monocular drivers as a whole are involved in more accidents than others as a whole,” although “not dramatically more.” EEOC, 149 F.Supp.2d at 1144. In particular, the district court recognized that peripheral vision plays an important role in avoiding accidents and that ”the monocular driver has less opportunity to see a child or any other pedestrian or cyclist or car darting from the impaired side.” Id. at 1142 (em-phasis omitted). Just as the employer in McMillen demonstrated that excess weight compromised an emergency work-er‘s ability to perform safely, UPS demon-strated that decreased peripheral vision compromises a driver‘s ability to perform safely as compared to a person without that impairment.
Yet, although significant risks are posed by the absence of peripheral vision in one eye, not all monocular individ-uals lack peripheral vision in the affected eye. Hogya, for instance, has “useful sight in [his affected] eye at the periphery.” Id. at 1151. And the district court found that the absence of central vision acuity in one eye does not affect an individual‘s ability to drive safely, so long as the individual re-tains peripheral vision. Id. at 1142, 1144. According to the expert evidence relating to central-vision acuity, the court found, “one excellent eye is as good as any two.” Id. at 1142. We agree with UPS that, for purposes of FEHA‘s safety-of-others de-fense, this finding is clearly erroneous. The Vision Protocol requires drivers to retain visual acuity of at least 20/200 in the affected eye because 20/200 vision is the threshold for “gross object perception” and, thus, “even in the case of a[driver] getting something in the better eye, he/she would still be able to get to a safe stop until the vision cleared in the better eye.” Id. at 1131; see also Orange County, 1982 WL 36770, at *6 (finding that people with 20/200 or worse uncorrected vision pose a significantly greater danger to others while driving patrol cars). This reasoning, which the district court found to have “laid the foundation” for UPS‘s Vision Protocol, was dismissed because it was based on the “anecdotal experience” of Dr. Witkin, who developed UPS‘s Vision Protocol, rather than on statistical studies. EEOC, 149 F.Supp.2d at 1132.13 But, apart from that criticism, the district court did not address the merits of Dr. Witkin‘s reasoning in reaching its conclusion that the Vision Pro-tocol is “unnecessarily onerous in requir-ing” a minimum level of central vision in both eyes. See id. at 1142-43. The ab-sence of supportive studies does not make
It is undisputed that none of the Inter-venors meets the central vision acuity standard set forth in the Vision Protocol.14
This fact is a sufficiently individualized determination to satisfy the safety-of-oth-ers defense because, as in McMillen, each applicant was tested for compliance with specific criteria that themselves are a rea-sonable “means of ensuring the safety of its employees and members of the public.” 6 Cal.App.4th at 130-31, 8 Cal.Rptr.2d at 551. The district court acknowledged that the potential for traffic fatalities is a seri-ous problem. EEOC, 149 F.Supp.2d at 1169. Indeed, the California decisions dis-cussed above suggest that the potential for endangerment of human life justifies safe-ty-based restrictions even when the risk of occurrence is modest. For that reason, we conclude that Intervenors’ failure to meet the Vision Protocol demonstrates that their performance of the duties of a full-time package car driver would endanger the health and safety of others “to a great-er extent than if an individual without a disability performed the job,”
We do not suggest that any vision proto-col would pass muster. But because the UPS Vision Protocol rests on objective and statistical evidence that monocular drivers are involved in somewhat more accidents than binocular drivers, because the risk of harm to others is high, because the UPS standard does not categorically exclude monocular individuals from working as full-time package car drivers, and because the application of the Protocol is individu-alized to each employee or applicant, we are persuaded that UPS must prevail on its safety-of-others defense.
III. The award of attorney fees was an abuse of discretion.
The district court made an error of law, and therefore abused its discretion, in awarding attorney fees to UPS under
We begin by summarizing the relevant facts. The Bryan action was filed in May 2001. To ascertain that Plaintiffs had ex-hausted their administrative remedies be-fore filing a complaint, Plaintiffs’ counsel relied on a list of “Class Members” from the EEOC action. The district court as-sumed that it was reasonable for Plaintiffs’ counsel to have relied on that list initially. But during depositions in November 2003, Bryan testified that he had not filed a complaint with either the EEOC or the California Department of Fair Employ-ment and Housing. Similarly, in his depo-sition Torres testified that he had not filed a complaint with the state agency and could not remember whether he had filed with the EEOC. One day after the deposi-tions ended, Plaintiffs’ counsel filed a mo-tion for summary adjudication that includ-ed the Bryan and Torres claims.
Plaintiffs’ counsel made various over-tures toward dismissing the Bryan and
Following the voluntary dismissals, UPS filed a motion for attorney fees under
The district court was within its discretion to determine that some kind of sanction was appropriate, because Plain-tiffs continued to litigate their claims after Plaintiffs’ counsel knew that Bryan had not exhausted his remedies and had reason to suspect that Torres had not. See Bond, 50 Cal.App.4th at 921, 57 Cal.Rptr.2d at 919 (noting that a prevailing defendant may be awarded fees if the plaintiff‘s action was unreasonable, frivolous, meritless, or vexa-tious). But the district court misunder-stood Hon v. Marshall, 53 Cal.App.4th 470, 62 Cal.Rptr.2d 11 (1997). In Hon, the defendant in a FEHA action was granted summary judgment because the plaintiff failed to exhaust her administrative reme-dies:
This case . . . raises a narrow question which is apparently one of first impres-sion in this state, whether a defendant who is granted summary judgment be-cause of such a jurisdictional defect qualifies as a “prevailing party” enti-tled to an attorney fee award under section 12965.
Id. at 475, 62 Cal.Rptr.2d at 13 (emphasis added). We do not read Hon, as the district court did, merely to “express[] a general preference toward not awarding attorney‘s fees when dismissal is based on non-exhaustion of administrative reme-dies.” Instead, the court in Hon interpret-ed the statutory term “prevailing party” and held that, when summary judgment is entered without a decision on the merits because the plaintiff failed to exhaust, the defendant simply is not a “prevailing par-ty” that is eligible for fees under
Although Hon precludes an award of attorney fees under
CONCLUSION
Intervenors are limited in the major life activity of seeing, and Plaintiffs are limited in the major life activity of working. Con-sequently, we AFFIRM the district court‘s partial summary judgment for Plaintiffs in
SUSAN P. GRABER
UNITED STATES CIRCUIT JUDGE