Plaintiff and appellant Frank Estrada (Estrada) appeals a judgment following a court trial in an action against the City of Los Angeles (the City) for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).
The essential issue presented is whether the trial court properly held that Estrada, formerly a volunteer police reserve officer for the City, was not an employee for purposes of the FEHA.
Although police reserve officers are volunteers who serve gratuitously, the City deems these individuals to be "employees" for the limited purpose of extending them workers' compensation benefits. Such benefits are not remuneration; rather, they help to make the volunteers whole, in the event they are injured while performing their duties. The City's policy decision to extend workers' compensation benefits to these individuals, who voluntarily put themselves in harm's way on behalf of the community, does not transform the volunteers' status to that of "employee" for purposes of the FEHA. Accordingly, the trial court properly concluded Estrada was not an employee and therefore could not maintain a cause of action against the City for disability discrimination. The judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In 1990, Estrada became a reserve officer for the Los Angeles Police Department (LAPD or Department).
As an applicant for the reserve officer position, Estrada acknowledged in writing that "As a member of the Police Reserve Corps, I am not a regularly salaried officer of the [Department] and am not entitled to compensation for services rendered as a Police Reserve Officer."
In 1995, while on duty, Estrada was involved in a traffic collision and sustained leg and back injuries. In 1996, while on duty, Estrada again was involved in a traffic collision and injured his right shoulder. In both instances, he obtained workers' compensation benefits and continued to receive benefits, as his injuries were not fully resolved.
In October 2004, the Food and Drug Administration (FDA) served a search warrant on Estrada's nutritional supplement company, Body Basics, Inc. Thereafter, Estrada was the subject of a personnel complaint by the Department's internal affairs division. The personnel complaint alleged that while Estrada was off duty, he "inappropriately sold a product containing sildenafil citrate, the active ingredient of Pfizer's trademark prescription drug Viagra."
In May 2005, Estrada was suspended from the police reserve corps pending the outcome of the investigation of the personnel complaint. After being served with a notice of proposed disciplinary action, Estrada submitted a 139-page Skelly
2. Superior court proceedings.
On June 3, 2009, Estrada filed suit against the City, alleging disability discrimination under the FEHA (Gov. Code, § 12945.2, subd. (l)) (first cause of action); retaliation for filing workers' compensation claim (Lab. Code,
Estrada subsequently withdrew the second cause of action, and the third cause of action was eliminated on demurrer. Thus, this matter proceeded only on the first cause of action, the FEHA claim.
The matter was bifurcated. The parties stipulated the threshold issue of Estrada's employment status was a question of law for the court to decide, in that the pertinent facts were undisputed. The parties filed trial briefs as well as requests for judicial notice of various materials, including benefits information for reserve officers, and various provisions of the City charter (City Charter) and L.A. Administrative Code.
After considering the parties' written and oral arguments and evidence in support thereof, the trial court determined "as a matter of law that [Estrada] could not prove the elements of his first cause of action for disability discrimination in violation of the [FEHA] on the ground that [Estrada] is not an employee for purposes of the FEHA." The trial court ruled "because the City of Los Angeles is a public agency whose applicable ordinance only permits employment of those appointed pursuant to the City Civil Service Rules and Estrada was not so employed, he is not an employee for purposes of the [FEHA]."
Estrada filed a timely notice of appeal from the judgment.
Estrada contends the trial court erred in concluding the definition of "employee" for purposes of his FEHA discrimination claim is governed by the City's civil service rules; a charter city, such as Los Angeles, cannot opt out of complying with state laws that address statewide concerns; the FEHA defines "employee" broadly and looks to case law for a more useful definition; the FEHA reflects matters of statewide concern and cannot be trumped by the City's civil service rules; including the City's police reserve officers within the definition of "employee" is consistent with the public policy expressed in the FEHA and is reasonably related to the statewide concerns addressed in the FEHA.
1. General principles; to recover for employment discrimination under the FEHA, an aggrieved plaintiff must have the status of an employee; an uncompensated volunteer is not an employee.
In "order to recover under the discrimination in employment provisions of the FEHA, the aggrieved plaintiff must be an employee." (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842 [125 Cal.Rptr.2d 829] (Shephard).) However, "the statutory definition of `employee' found at [Government Code] section 12926, subdivision (c), does not actually define who is an employee under the FEHA; it merely excludes persons employed by close relatives and those `employed' by nonprofit sheltered workshops and rehabilitation facilities.[
In Mendoza, the plaintiff was a volunteer community service officer with the Town of Ross (Town) who worked as an uncompensated volunteer and assisted in traffic duties, crime prevention and neighborhood crime watch programs. (Mendoza, supra, 128 Cal.App.4th at p. 629.) He sued for disability discrimination in violation of the FEHA after his position as a community service officer was terminated. (128 Cal.App.4th at pp. 628-630.) He argued he met the Department of Fair Employment and Housing's, "and thus the FEHA's, definition of an employee because he was `appointed' to his volunteer position. As evidence of this, [the plaintiff] relie[d] on his police identification card, which state[d], `This is to certify that Peter Mendoza is a duly appointed Community Service Officer.' (Italics added.)" (Mendoza, supra, 128 Cal.App.4th at p. 633, first italics added.)
The Mendoza court rejected this argument, stating: "Regardless of what verbiage may appear on Mendoza's identification card, Mendoza ignores the controlling local ordinance, which vests the Town Council with the exclusive authority to make appointments to employment. Under Section 3.5.1 of the Town's `Personnel Rules' in the record before us (Rule 3.5.1), it is provided: `Appointment to full-time regular, part-time regular, or temporary positions shall be made by the Town Council with the recommendation of the department heads.' [Italics omitted.] Thus, the Town Council has exclusive authority to appoint individuals to employment positions with the Town, albeit upon the advice of city department heads. The first amended complaint contains no allegation that such an appointment was made in Mendoza's case, nor did Mendoza make any proffer in response to the Town's request for judicial notice that he was appointed to his [Community Service Officer] position in accordance with Rule 3.5.1. The Town persuasively argues that since the Town's appointment process was not initiated, Mendoza was not appointed, and does not fall under the FEHA employee category as an appointee." (Mendoza, supra, 128 Cal.App.4th at p. 633, fns. & italics omitted.)
Mendoza continued, "absent applicable California case law on the issue of whether the FEHA applies to volunteers, it is instructive to look to federal law. `"`Because the antidiscrimination objectives and relevant wording of title VII of the Civil Rights Act of 1964 (Title VII) [(42 U.S.C. § 2000e et seq.)] [and other federal antidiscrimination statutes] are similar to those of the FEHA, California courts often look to federal decisions interpreting these statutes for assistance in interpreting the FEHA.'" [Citation.]' (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 [111 Cal.Rptr.2d 87, 29 P.3d 175]; see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 606 [262 Cal.Rptr. 842].)" (Mendoza, supra, 128 Cal.App.4th at p. 635.)
Title VII "succinctly defines `employee' as an `individual employed by an employer.' (42 U.S.C. § 2000e(f).) The first prong of the title VII test in determining if someone is an employee requires the plaintiff to prove he or she was hired by the putative employer. (U.S. v. City of New York (2d Cir. 2004) 359 F.3d 83, 91-92.) To do so, the courts must look to `"the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid  490 U.S. 730 [104 L.Ed.2d 811, 109 S.Ct. 2166] ..." to determine whether an employment relationship exists. Eisenberg v. Advance Relocation and Storage, Inc., 237 F.3d 111, 113-14 (2d Cir. 2000).' (U.S. v. City of New York, supra, 359 F.3d at p. 92.) However, to satisfy the hiring prong, a purported employee must establish the existence of remuneration, in some form, in exchange for work. (Ibid.)" (Mendoza, supra, 128 Cal.App.4th at pp. 635-636, italics added.)
For example, "the United States Court of Appeals for the Second Circuit has held that an unpaid intern could not sue for sexual harassment under title
Other courts "have agreed with this view. (City of Fort Calhoun v. Collins (1993) 243 Neb. 528 [500 N.W.2d 822] [volunteer firefighters were not employees within the meaning of the Nebraska Fair Employment Practice Act, which is patterned after title VII]; Haavistola v. Community Fire Co. (4th Cir. 1993) 6 F.3d 211, 219; Graves v. Women's Professional Rodeo Ass'n., Inc. (8th Cir. 1990) 907 F.2d 71, 72-73 [male rodeo barrel racer could not bring title VII claim because association did not have employees since it gave no compensation, which is an essential condition to the existence of an employer-employee relationship].)" (Mendoza, supra, 128 Cal.App.4th at p. 636.)
Mendoza observed, "Even substantial indirect compensation can satisfy the threshold requirement of remuneration for purposes of employee status under title VII. If not direct salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, are indicia of employment status. (U.S. v. City of New York, supra, 359 F.3d at p. 92.) Thus, volunteer firefighters in Pietras v. Board of Fire Com'rs of Farming[ville] (2d Cir. 1999) 180 F.3d 468 were entitled to employee status, in part, based on their receipt of significant benefits, such as disability pensions, survivors' benefits, group life insurance, and scholarships for dependent children of deceased firefighters. (Ibid.)" (Mendoza, supra, 128 Cal.App.4th at p. 636, fn. omitted.)
In Mendoza, the plaintiff "concede[d] that his position was unpaid, and [did] not allege that he received any other type of financial benefit he might have received, such as health, insurance, or retirement benefits. (York v. Association of Bar of City of New York (2d Cir. 2002) 286 F.3d 122, 126.) Because [the plaintiff's] position was unpaid and his complaint made no mention of any health, retirement, or other substantial benefits, for this additional reason [the plaintiff] d[id] not meet the definition of employee for FEHA purposes." (Mendoza, supra, 128 Cal.App.4th at p. 637.)
Mendoza "conclude[d] that [plaintiff's] service as a [Community Service Officer] was not the result of an appointment provided to him pursuant to contract, nor was it an apprenticeship. Furthermore, even if he could meet one of these definitional standards, the absence of remuneration prevents him from attaining `employee' status under the FEHA." (Mendoza, supra, 128 Cal.App.4th at p. 637.)
2. Trial court properly determined Estrada was not an employee of the City within the meaning of the FEHA; Estrada was appointed to a volunteer position without remuneration.
Section 1004 of the City Charter provides in relevant part that the Board of Civil Service Commissioners of the City of Los Angeles (Board) "shall promulgate civil service rules to carry out the purposes of this Article in accordance with applicable law."
Estrada concedes in his opening brief that he "was not appointed or considered an employee by the City of Los Angeles' Civil Service." Nonetheless, Estrada asserts employee status based on his appointment by the City's chief of police.
In that regard, section 22.227 of the L.A. Administrative Code states: "A Police Reserve Corps is created and established as an organization, which shall be composed of persons who shall have been appointed and sworn in as members of the Corps by the Chief of Police or by a Deputy Chief of Police designated by the Chief for this purpose.... Members shall be volunteer workers only and shall not be, or be deemed to be, employees of the City or of the Police Department for any purpose other than for the purposes of Section 22.233 of this Article and shall serve gratuitously except as provided in Section 22.230 of this Article." (Italics added.)
Thus, pursuant to the language of L.A. Administrative Code section 22.227, Estrada was "appointed" to his volunteer position by the chief of police. This is similar to Mendoza, wherein the plaintiff was "appointed" to his position as a volunteer community service officer. (Mendoza, supra, 128 Cal.App.4th at p. 633.) Nonetheless, here, as in Mendoza (ibid.), the plaintiff
3. The fact the City provides police reserve officers with workers' compensation coverage does not compel a different conclusion; workers' compensation benefits do not amount to remuneration giving rise to employee status.
As indicated, the City has ordained that members of the police reserve corps "shall be volunteer workers only and shall not be, or be deemed to be, employees of the City or of the Police Department for any purpose other than for the purposes of Section 22.233 of this Article [(workers' compensation benefits)] and shall serve gratuitously except as provided in Section 22.230 of this Article [($50 reimbursement for expenses per deployment period)]." (L.A. Admin. Code, § 22.227, italics added.)
Thus, the City deems police reserve officers, such as Estrada, to be employees solely for purposes of workers' compensation coverage. The City does so despite the fact the Workers' Compensation Act excludes from the definition of employee "[a]ny person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses." (Lab. Code, § 3352, subd. (i).)
We are mindful the Mendoza court, citing the volunteer exclusion, found "it would be incongruous to determine that Mendoza is an employee under the FEHA, but not an employee for workers' compensation purposes." (Mendoza, supra, 128 Cal.App.4th at p. 635.) Mendoza thus found the plaintiff was not an employee under either statutory scheme.
Mendoza also was guided by Shephard, supra, 102 Cal.App.4th 837, which "emphasized that in the context of workers' compensation, Labor Code section 3352, subdivision (k) explicitly excludes a student athlete receiving an
This fact situation is unlike Mendoza or Shephard. In both of those cases, the plaintiffs were not employees, either for purposes of workers' compensation coverage or for coverage for discrimination under the FEHA. (Mendoza, supra, 128 Cal.App.4th at p. 635; Shephard, supra, 102 Cal.App.4th at pp. 846-847.) Here, the City has chosen to include volunteer reserve officers within the definition of "employee," strictly for purposes of workers' compensation coverage. (L.A. Admin. Code, § 22.227.) Clearly, the City has made a policy decision to extend such benefits to volunteers reserve officers, who serve gratuitously and put themselves in harm's way to protect the community.
Estrada was a volunteer who served without remuneration. He was appointed to a volunteer position, rather than to a position in the classified civil service. Accordingly, Estrada was not an employee of the City. (Board Civil Service Rules, § 1.17.) Therefore, Estrada is incapable of maintaining a cause of action against the City for disability discrimination pursuant to the FEHA.
The judgment is affirmed. The parties shall bear their respective costs on appeal.
Croskey, J., and Aldrich, J., concurred.