Bass v. County of Butte

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ALLISON BASS and THOMAS SCOTT 
PARKS,
Plaintiffs-Appellants,
No. 04-16705
v.
THE COUNTY OF BUTTE; SCOTT  D.C. Nos.
CV-02-02443-DFL
MACKENZIE, Sheriff; BUTTE COUNTY CV-02-02444-DFL
SHERIFF’S OFFICE; WILLIAM
ANDERSON, Lieutenant,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
David F. Levi, District Judge, Presiding

JOHN MULDOWN, 
Plaintiff-Appellant,
No. 04-17286
v.
D.C. No.
THE COUNTY OF BUTTE; SCOTT  CV-02-02445-
MACKENZIE, Sheriff; BUTTE COUNTY LKK/CMK
SHERIFF’S OFFICE; WILLIAM
OPINION
ANDERSON, Lieutenant,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submitted
June 15, 2006—San Francisco, California

9697
9698 BASS v. COUNTY OF BUTTE
Filed August 15, 2006

Before: Mary M. Schroeder, Chief Judge, Susan P. Graber,
Circuit Judge, and Kevin Thomas Duffy,*
Senior District Judge.

Opinion by Judge Graber

*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
 BASS v. COUNTY OF BUTTE 9699

COUNSEL

Lynn Hubbard III and Scottlynn J. Hubbard IV, Law Offices
of Lynn Hubbard, Chico, California, for the plaintiffs-
appellants.

Gregory P. Einhorn, Law Office of Gregory P. Einhorn,
Chico, California, for the defendants-appellees.
9700 BASS v. COUNTY OF BUTTE
OPINION

GRABER, Circuit Judge:

Plaintiffs Allison Bass, Thomas Parks, and John Muldown
asserted employment discrimination claims against Defendant
County of Butte and others based on Defendant’s alleged fail-
ure to accommodate their work-related injuries. All three
Plaintiffs raised their employment claims under California’s
Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51,
and Disabled Persons Act (“DPA”), Cal. Civ. Code §§ 54,
54.1, on the theory that the two state laws incorporate Title I
of the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. §§ 12101-12213.1 We disagree.

This case consolidates the separate actions of three Plain-
tiffs against the County of Butte. Each of the three Plaintiffs
suffered an on-the-job injury and sought accommodation from
the County for his or her resulting physical impairment. Plain-
tiffs claim that the County failed to offer them reasonable
accommodations.

In 2002, Plaintiffs filed separate complaints, each seeking
monetary damages and declaratory relief against Butte
County, Butte County Sheriff Scott Mackenzie, and Lieuten-
ant William Anderson. Plaintiffs raised both federal and state
causes of action including claims under the Rehabilitation Act
of 1973, 29 U.S.C. §§ 701-796l; the ADA; and 42 U.S.C.
§ 1983 and the Unruh Act, the DPA, and state law theories of
negligence and breach of contract.2 The district court granted
summary judgment in favor of Defendants on all claims.
Plaintiffs filed timely appeals and this court consolidated the
cases. At issue here is whether the district court properly dis-
1
Plaintiffs raised additional issues, which we have addressed in a sepa-
rate memorandum disposition, filed this date.
2
Plaintiffs could have, but did not, bring claims under California’s Fair
Employment and Housing Act.
 BASS v. COUNTY OF BUTTE 9701
missed Plaintiffs’ employment discrimination claims brought
under the Unruh Act and the DPA.

Plaintiffs argue that both laws incorporate Title I of the
ADA, thereby making California’s Unruh Act and DPA state
law vehicles for enforcing the ADA’s employment protec-
tions. The district court granted summary judgment, holding
that neither state statute provides a cause of action for
employment discrimination. We review de novo this interpre-
tation of state law. Rabkin v. Or. Health Scis. Univ., 350 F.3d
967, 971 (9th Cir. 2003).

[1] Congress enacted the ADA in 1990. The purpose of the
statute is, in part, “to provide a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.” 42 U.S.C. § 12101(b)(1). The
statute addresses this goal in three main sections: Title I pro-
hibits public and private employers from discriminating
against qualified individuals with disabilities in employment
practices; Title II requires state and local governments to
ensure that individuals with disabilities have access to public
services, including transportation services; and Title III
requires equal access to public accommodations.

At the time that the ADA was passed, California had in
place various laws addressing each of these main subject
areas. Three are relevant here. The California Fair Employ-
ment and Housing Act (“FEHA”), Cal. Gov’t Code §§ 12900-
12996, makes it an unlawful employment practice to dis-
charge a person from employment, or to discriminate against
a person in the terms, conditions, or privileges, of employ-
ment, because of a physical or mental disability. Id.
§ 12940(a).

[2] The DPA and the Unruh Act both focus on ensuring
that persons with disabilities have equal access to public busi-
nesses, facilities, and other accommodations. Section 54(a) of
the DPA provides:
9702 BASS v. COUNTY OF BUTTE
Individuals with disabilities or medical conditions
have the same right as the general public to the full
and free use of the streets, highways, sidewalks,
walkways, public buildings, medical facilities,
including hospitals, clinics, and physicians’ offices,
public facilities, and other public places.

Section 54.1 provides in pertinent part:

(a)(1) Individuals with disabilities shall be entitled
to full and equal access, as other members of the
general public, to accommodations, advantages,
facilities, medical facilities, including hospitals, clin-
ics, and physicians’ offices, and privileges of all
common carriers, airplanes, motor vehicles, railroad
trains, motorbuses, streetcars, boats, or any other
public conveyances or modes of transportation
(whether private, public, franchised, licensed, con-
tracted, or otherwise provided), telephone facilities,
adoption agencies, private schools, hotels, lodging
places, places of public accommodation, amusement,
or resort, and other places to which the general pub-
lic is invited, subject only to the conditions and limi-
tations established by law, or state or federal
regulation, and applicable alike to all persons.[3]

....

(b)(1) Individuals with disabilities shall be entitled
to full and equal access, as other members of the
general public, to all housing accommodations
offered for rent, lease, or compensation in this state,
subject to the conditions and limitations established
by law, or state or federal regulation, and applicable
alike to all persons.
3
The DPA defines “full and equal access” as “access that meets the
standards of Titles II and III of the Americans with Disabilities Act of
1990.” Cal. Civ. Code § 54.1(a)(3).
 BASS v. COUNTY OF BUTTE 9703
The Unruh Act provides in pertinent part:

All persons within the jurisdiction of this state are
free and equal, and no matter what their sex, race,
color, religion, ancestry, national origin, disability,
mental condition, marital status, or sexual orientation
are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all
business establishments of every kind whatsoever.

Cal. Civ. Code § 51(b).

[3] The California courts have, historically, rejected
attempts by plaintiffs to expand the scope of the Unruh Act
to include employment claims. In Alcorn v. Anbro Engineer-
ing, Inc., 468 P.2d 216, 229 (Cal. 1970), the California
Supreme Court dismissed a plaintiff’s race-based employment
discrimination claim, holding that “there is no indication that
the Legislature intended to broaden the scope of section 51 to
include discriminations other than those made by a ‘business
establishment’ in the course of furnishing goods, services or
facilities to its clients, patrons or customers.” The California
Supreme Court bolstered its holding that the Unruh Act does
not apply to employment claims by noting: “This conclusion
is substantiated by the fact that at the same session wherein
it adopted the language of section 51, the Legislature also
enacted extensive provisions governing discrimination in
employment.” Id. The California Supreme Court reiterated the
Alcorn holding 20 years later in Rojo v. Kliger, 801 P.2d 373,
380 (Cal. 1990), stating broadly that “the Unruh Civil Rights
Act has no application to employment discrimination.”

Plaintiffs argue that amendments to the Unruh Act and the
DPA enacted in 1992 and 1996, respectively, accomplished
the subject matter expansion that the California Supreme
Court had rejected expressly in 1970 and 1990. Plaintiffs’
argument is incompatible with the state’s statutory scheme as
9704 BASS v. COUNTY OF BUTTE
a whole and is unsupported by the legislative history of the
amendments.

The California governor signed Assembly Bill 1077 into
law in 1992 and signed Senate Bill 1687 in 1996. The stated
purpose of Bill 1077 was to “conform state anti-
discrimination laws with the provisions of the Americans with
Disabilities Act.” (Assem. Off. of Research, 3d reading analy-
sis, A.B. 1077 (Cal. 1992 Reg. Sess.) as amended Jan. 29,
1992.) To achieve that end, the bill proposed amendments to
a range of state statutes, including the Unruh Act and FEHA.
Bill 1687 was much more limited in purpose, seeking primar-
ily to clarify the state’s protections for the use of assistance
dogs by disabled persons. (Sen. Off. of Research, 3d reading
analysis, S.B. 1687 (Cal. 1996 Sess.) as amended Apr. 25,
1996.)

[4] As amended, the Unruh Act incorporated the following
statement: “A violation of the right of any individual under
the Americans with Disabilities Act of 1990 shall also consti-
tute a violation of this section.” Cal. Civ. Code § 51(f) (cita-
tion omitted). Sections 54 and 54.1 of the DPA were amended
to include materially identical provisions.4 Plaintiffs argue
that the plain meaning of the amendments requires the incor-
poration of the ADA in its entirety into the Unruh Act and the
DPA. Plaintiffs’ reading transforms the subject-matter scope
of these statutes, drastically broadening their reach from pub-
lic accommodations to employment discrimination.

[5] In interpreting a state statute, we must determine what
meaning the state’s highest court would give to the law. Gold-
man v. Standard Ins. Co., 341 F.3d 1023, 1027 (9th Cir.
2003). Thus, we must follow the state’s rules of statutory
interpretation. Planned Parenthood of Idaho, Inc. v. Wasden,
376 F.3d 908, 930 (9th Cir. 2004), cert. denied, 544 U.S. 948
4
Section 54.1(d) states additionally that “nothing in this section shall be
construed to limit the access of any person in violation of that act.”
 BASS v. COUNTY OF BUTTE 9705
(2005). “As in any case involving statutory interpretation, our
fundamental task is to determine the Legislature’s intent so as
to effectuate the law’s purpose.” People v. Murphy, 19 P.3d
1129, 1133 (Cal. 2001). We begin by “examining the statute’s
words, giving them a plain and commonsense meaning.” Id.
However, text is not to be interpreted in isolation. Id. Rather,
we must look to “the entire substance of the statute . . . in
order to determine the scope and purpose of the provision.”
Id. (internal quotation marks omitted). Here, the context of the
1992 amendment leads us to conclude that the California leg-
islature intended to incorporate into the Unruh Act and the
DPA only those provisions of the ADA germane to the origi-
nal scope of those state laws. Beginning, as instructed, with
the common sense meaning of the text, we conclude that the
amendments merely incorporate any otherwise relevant ADA
standards as a “floor” under state law. Plaintiffs’ reading
would, in effect, add to the text that a violation of an individu-
al’s right under any part of the ADA shall constitute a state-
law violation as well, even if the subject matter of the alleged
ADA violation is wholly outside the state-law protection at
issue. The text of the amendments does not sweep so broadly.
Were there any doubt about our conclusion, it would be dis-
pelled by considering two aspects of the context and purpose
of the amendments.

First, Assembly Bill 1077 was a broad-spectrum enactment
that amended a number of state laws in an attempt to create
conformity between the gamut of California’s discrimination
provisions and those of the ADA. Notably, the bill also
amended FEHA, in an attempt to harmonize the state’s
employment discrimination protections with parallel federal
mandates. A.B. 1077, 1992 Reg. Sess. (Cal. 1992). If, as
Plaintiffs argue, the legislature intended to transform the
Unruh Act into an all-inclusive anti-discrimination law, then
its simultaneous strengthening of FEHA would have been
unnecessary and anomalous.

Second, Plaintiffs’ reading of the 1992 and 1996 amend-
ments would create a significant disharmony between the
9706 BASS v. COUNTY OF BUTTE
Unruh Act and the DPA, on the one hand, and FEHA , on the
other. FEHA provides an administrative scheme to process
claims of employment and housing discrimination. The statute
creates two administrative bodies—the Department of Fair
Employment and Housing, Cal. Gov’t Code § 12901, and the
Fair Employment and Housing Commission, id. § 12903—to
investigate, adjudicate, and redress discrimination claims, id.
§§ 12930, 12935. FEHA requires that an aggrieved claimant
exhaust the administrative remedies provided by those bodies
before filing an action in state or federal court. Id. §§ 12960-
12976. By contrast, neither the Unruh Act nor the DPA con-
tains a comparable administrative scheme. Therefore, Plain-
tiffs’ attempt to expand the subject matter scope of these
statutes to incorporate Title I of the ADA would create an
end-run around the administrative procedures of FEHA solely
for disability discrimination claimants. Nothing in the legisla-
tive history of either amendment suggests that the legislature
intended to carve out such an exception by roundabout impli-
cation.

Finally, our decision today is consistent with our own pre-
cedent. Although we have not directly addressed the issue in
the context of a disability discrimination claim, we have
applied the rule of Rojo that excludes employment claims
from the reach of the Unruh Act. See Strother v. S. Cal. Per-
manente Med. Group, 79 F.3d 859, 874-75 (9th Cir. 1996)
(affirming summary judgment where the plaintiff’s claim of
race discrimination arose out of an employment relationship
with the defendant); see also Sprewell v. Golden State War-
riors, 266 F.3d 979, 989 (9th Cir. 2001) (holding that the
plaintiff had failed to plead facts sufficient to invoke the pro-
tections of the Unruh Act where his claims stemmed from his
employment relationship with the defendant).

[6] Reading the 1992 and 1996 amendments to the Unruh
Act and the DPA in the context of California’s overall scheme
of statutory protections against discrimination, and in the
absence of any express indication by the state legislature that
 BASS v. COUNTY OF BUTTE 9707
it intended the amendments to drastically expand the subject
matter of the two statutes, or to overrule Alcorn and Rojo, we
hold that those amendments incorporate into the Unruh Act
and the DPA only those provisions of the ADA that are ger-
mane to the statutes’ original subject matter.

AFFIRMED.