WERDEGAR, J., Dissenting. I respectfully dissent.
The issue in this case is simple: In an action for disability discrimination under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),1 which party bears the burden of proving that the plaintiff’s disability did or did not prevent the plaintiff from performing the essential duties of the job? Is ability to perform an element of the plaintiff’s cause of action or is inability to perform an affirmative defense for the employer? As I explain below, although the statutory language at issue (§ 12940, subd. (a)(1)) does not expressly assign the burden of proof, established principles of statutory interpretation demonstrate that the reading best according with legislative intent is that inability to perform the job’s essential duties is a defense on which employers have the burden of proof.
To reach its contrary conclusion, the majority ignores the statute’s structure, distorts its legislative and regulatory history, and relies on inapposite authority. But fundamentally, a single logical error pervades the majority’s discussion. Because section 12940, subdivision (a)(1) relieves employers from liability for firing or refusing to hire a disabled person if the disability prevents that person from performing the position’s essential functions, the majority reasons, proof of ability to perform must be part of the plaintiff’s case. (See maj. opn., ante, at pp. 262-264, 265-266.) This syllogism rests on the false premise that no affirmative defense exists or can exist to a claim of disability discrimination. In fact, as I will explain, section 12940 provides for several affirmative defenses, inability to perform being only one.
[268]In effect, the majority creates a presumption that people with disabilities cannot perform in the workplace. Certainly, some disabilities prevent the performance of some jobs, even with reasonable accommodations by the employer; in those circumstances, the Legislature has relieved employers from any liability by affording them the affirmative defense provided in section 12940, subdivision (a)(1). But the rule that individuals with disabilities are presumed unable to work until they prove otherwise is not one intended by the Legislature. The majority simply reads it into the statute.
Discussion
I. Under FEHA, Inability to Perform Is an Affirmative Defense
To interpret FEHA in accord with the legislative intent, we start with the language of the statute. The pertinent language of section 12940 is as follows:
“It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification . . . :
“(a) For an employer, because of the . . . physical disability, mental disability, ... of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
“(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”
The statute makes clear that employers do not face liability under FEHA for firing or refusing to hire a disabled person who is unable, even with reasonable accommodations, to perform the essential duties of the position. In this case, for example, if because of his hepatitis C plaintiff Dwight D. Green was unable to perform the essential duties of a stationary engineer at a state prison, defendant State of California did not violate FEHA by terminating him because of his disability. The only interpretive question we face is who [269]bore the burden of proof on that issue—plaintiff or defendant. As nothing in the statute expressly allocates the burden of proof, I turn to other accepted guides to legislative intent.
A. The burden of proof on an exception ordinarily lies with the party invoking the exception.
Section 12940, subdivision (a) first prohibits in general terms, and without any pertinent limitation, adverse employment actions taken because of a person’s physical or mental disability (as well as, e.g., race, sex and religion). In a new paragraph (id., subd. (a)(1)), it then separately provides, as an exception to that prohibition, that an employer may terminate or refuse to hire a disabled person where, because of the disability, the person is unable to perform the job’s essential duties. (See Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1056, fn. 5 [22 Cal.Rptr.2d 287, 856 P.2d 1143] [describing inability to perform as an exception to the discrimination prohibition].)
In a civil case, ordinarily, “[o]ne who claims the benefit of an exception from the prohibition of a statute has the burden of proving that his claim comes within the exception.” (2A Singer, Statutes and Statutory Construction (6th ed. 2000 rev.) § 47:11, p. 251; see, e.g., United States v. First City Nat. Bank (1967) 386 U.S. 361, 366 [18 L.Ed.2d 151, 87 S.Ct. 1088]; Da Vinci Group v. San Francisco Residential Rent etc. Bd. (1992) 5 Cal.App.4th 24, 28 [6 Cal.Rptr.2d 461].) That interpretive guideline is clearly applicable to section 12940. Unlike the federal Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), which incorporates into its central prohibitory provision a requirement the plaintiff be able, with reasonable accommodation if necessary, to perform the position’s essential tasks (see 42 U.S.C. §§ 12112(a) [referring to a “qualified individual with a disability” (italics added)], 12111(8) [defining that term]), FEHA first states an unlimited prohibition against disability discrimination and then provides an exception for inability to perform. The difference is indicative of legislative intent. Absent a strong counterindication, I would apply the general rule that “ ‘ “[o]ne seeking to be excluded from the sweep of the general statute must establish that the exception applies.” ’ ” (City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1017 [20 Cal.Rptr.2d 658]; see Barnes v. Chamberlain (1983) 147 Cal.App.3d 762, 767 [195 Cal.Rptr. 417].)
B. The various exceptions in section 12940, subdivision (a)(1) should be construed harmoniously.
We should interpret section 12940, subdivision (a)(1) as a whole, construing its parts harmoniously and sensibly together and giving closely related [270]provisions compatible readings if possible. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1135, fn. 10 [57 Cal.Rptr.3d 306, 156 P.3d 328]; Hsu v. Abbara (1995) 9 Cal.4th 863, 871 [39 Cal.Rptr.2d 824, 891 P.2d 804].) The Legislature, in the same sentence of section 12940, subdivision (a)(1) that contains the inability-to-perform exception, also set out two health or safety exceptions, removing from the general disability discrimination prohibition the discharge or refusal to hire a person who because of his or her disability “cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” These health or safety exceptions have long been read both administratively and judicially as creating defenses, on which defendants bear the burden of proof. (Cal. Code Regs., tit. 2, § 7293.8, subds. (c), (d); American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603, 609-610 [186 Cal.Rptr. 345, 651 P.2d 1151] (American National); Raytheon Co. v. Fair Employment & Housing Com. (1989) 212 Cal.App.3d 1242, 1252 [261 Cal.Rptr. 197]; Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798-799 [175 Cal.Rptr. 548].)
Indeed, in American National this court read section 12940, subdivision (a)(1) as providing essentially a single defense covering both inability to perform and inability to perform safely and without health risks. While barring disability discrimination in EEHA, the Legislature, we explained, “made present inability to perform a particular job efficiently, safely, and without danger to health one of the few defenses to a charge of discrimination. (§ 12940, subd. (a)(1).)” (American National, supra, 32 Cal.3d at pp. 609-610.) The majority, ignoring our prior interpretation in American National, now incongruously treats the sentence’s two provisions differently, transforming the inability-to-perform portion from a defense to an element of the plaintiff’s case. Nothing in the statute suggests the Legislature intended the inability-to-perform exception, uniquely, to be part of the plaintiff’s case.
The majority’s unharmonious reading also creates a potential for confusion at trial that the Legislature surely did not intend. An employer’s claim that, because of disability, the plaintiff was unable to perform is not always distinguishable from a claim that, because of disability, employing the plaintiff would have endangered his or her health or safety or that of others in the workplace. In the present case, for example, defendant claims plaintiff, because of his disability, could not keep secure physical control over the inmates with whom he worked, with possibly “life-threatening” consequences. This is clearly a safety concern, and on retrial the jury in this case will presumably be given (as it was in the first trial) BAJI No. 12.16 or an equivalent instruction placing on defendant the burden to prove the health or safety exception applicable. But at the same time, according to the majority (maj. opn., ante, at pp. 266-267), the jury must be instructed that plaintiff [271]bears the burden of showing he can perform the job’s essential duties—duties that, defendant asserts, include maintaining security over inmates. How the jury—or any future jury in a similar case—is expected to follow these contradictory directions is, to say the least, unclear.
C. The Fair Employment and Blousing Commission (FEHC) interprets section 12940, subdivision (a)(1) as providing an affirmative defense.
The FEHC, the agency charged with adjudicating FEHA enforcement actions and interpreting FEHA by regulation (§ 12935, subd. (a)), also reads the statute as establishing an inability-to-perform defense. The FEHC’s 1987 regulation (Cal. Code Regs., tit. 2, § 7293.8, subd. (b) (Code of Regulations section 7293.8(b)), placed in the same code section as the two health or safety defenses, provides: “Inability to Perform. It is a permissible defense for an employer or other covered entity to demonstrate that, after reasonable accommodation has been made, the applicant or employee cannot perform the essential functions of the position in question because of his or her disability.” This regulation, the FEHC explained at the time, would “mak[e] clear that it is the employer’s burden to prove, in defense of its discrimination, that the handicap would render the person unable to perform” (FEHC, Notice of Proposed Changes (Mar. 16, 1987) p. 1); its adoption would conform the commission’s regulations to section 12940, subdivision (a)(1), which the commission believed “clearly makes inability to perform a defense.” (FEHC, Final Statement of Reasons for Changes to Physical Handicap Regulations (Oct. 15, 1987) p. 4.)
The FEHC, employing its expertise developed adjudicating and administering FEHA, adopted Code of Regulations section 7293.8(b) after reaching the same conclusion in precedential adjudicative decisions2 and after full notice, public comment, and deliberation. The commission has maintained its interpretation consistently for more than 20 years since first adopting it.
An administrative agency’s reasonably contemporaneous statutory interpretation, adopted by the agency responsible for administering the statute after full deliberation and consistently maintained since, is entitled to great weight and will be overturned only if clearly erroneous. (Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1012-1014 [32 Cal.Rptr.3d 89, 116 P.3d 550]; Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 12-13 [78 Cal.Rptr.2d 1, 960 P.2d 1031].) Following this principle, we have previously [272]deferred to the FEHC’s regulations and precedential decisions interpreting FEHA. (Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1029-1030 [130 Cal.Rptr.2d 662, 63 P.3d 220]; cf. Gay Law Students Assn. v. Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 491 [156 Cal.Rptr. 14, 595 P.2d 592].) The FEHC’s interpretation of section 12940, subdivision (a)(1), far from being clearly erroneous, accords with the most reasonable reading of the statute’s language, as explained above. We should accord it great weight. (Accord, Ackerman v. Western Elec. Co., Inc. (9th Cir. 1988) 860 F.2d 1514, 1518-1519 [holding, in reliance on Code of Regs., § 7293.8(b), that the burden of proving inability to perform lies with the defendant].)
The majority concedes Code of Regulations section 7293.8(b) “arguably” places the burden of proof on employers, but insists the regulation is inconsistent with the statute because the Legislature “has not imposed liability on an employer if an employee, even a disabled employee, could not perform his or her duties with or without reasonable accommodation.” (Maj. opn., ante, at p. 266.) Here, the majority succumbs to the fallacy I identified at the outset. That the employer is not liable when the employee’s disability renders the employee unable to perform does not imply ability to perform must be part of the plaintiff’s case; rather, inability to perform may logically be made a matter of defense.3 The FEHC’s interpretation of section 12940, subdivision (a)(1) as providing an affirmative defense is thus not inconsistent with the legislative intent. Indeed, the FEHC’s interpretation is the most reasonable one, given the statute’s language and structure.
D. The Legislature, while amending section 12940, subdivision (a)(1), has acquiesced in the FEHC’s interpretation.
Legislative acquiescence in this long-standing administrative interpretation supports the conclusion that the FEHC has correctly interpreted section 12940, subdivision (a)(1). (Sara M. v. Superior Court, supra, 36 Cal.4th at pp. 1014-1015.) Not once in the 20 years that Code of Regulations section 7293.8(b), the definitive FEHC regulation, has been on the books—and applied in every disability discrimination action adjudicated by the agency— has the Legislature indicated any disapproval. In that time, the Legislature has amended section 12940, subdivision (a)(1) at least once: in 1992, it [273]changed references to “handicap” to “disability” and substituted the phrase “essential duties even with reasonable accommodations” for the word “duties.” (Stats. 1992, ch. 913, § 23.1, p. 4313.)
The majority argues that this change was intended to incorporate into FEHA the federal ADA’s allocation of burden of proof. (Maj. opn., ante, at p. 262.) But the ADA expressly allocates the burden of proof by requiring the plaintiff to prove he or she is a “qualified individual,” defining that phrase to mean an individual who can perform the job’s essential functions. Had the Legislature intended to abrogate the FEHC’s construction of section 12940, subdivision (a)(1) by adopting the ADA’s approach it would presumably have likewise inserted a “qualified individual” requirement into section 12940, subdivision (a) and defined that term as in the ADA. Moreover, while the 1992 amendments (a broad act making changes in public accommodations and housing law as well as employment) were generally intended to conform FEHA to the recently enacted ADA, the Legislature made very clear its intent that the ADA was to be a floor for protection of disabled Californians, not a ceiling. Section 1 of the 1992 act is explicit: “It is the intent of the Legislature in enacting this act to strengthen California law in areas where it is weaker than the [ADA] and to retain California law when it provides more protection for individuals with disabilities than the [ADA].” (Stats. 1992, ch. 913, § 1, p. 4282.) The majority’s supposition that the 1992 Legislature intended to weaken California’s protections for the disabled by imposing a new burden of proof on disability discrimination plaintiffs is thus without foundation.
II. The Majority’s Nontextual Arguments Fail Scrutiny
The majority offers two arguments drawn from outside the text of section 12940, subdivision (a)(1) for placing on plaintiffs the burden of proof regarding ability to perform: Evidence Code section 500 mandates it, and prior Court of Appeal decisions support it. Neither withstands analysis.
A. Evidence Code section 500.
First, the majority relies on Evidence Code section 500, which the majority quotes as providing that “ ‘a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief . . . that he is asserting.’ ” (Maj. opn., ante, at p. 263.) But the majority’s quotation omits a crucial phrase. The statute actually provides that “a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” (Evid. Code, § 500, italics added.) Evidence Code section 500 establishes that ordinarily the party to whose case a fact is essential bears the burden of proving that [274]fact, but the statute “does not attempt to indicate what facts may be essential to a particular party’s claim for relief or defense.” (Cal. Law Revision Com. com., reprinted at 29B pt. 1 West’s Ann. Evid. Code (1995 ed.) foil. § 500, p. 554.) It does not, therefore, tell us which facts are part of a disability discrimination claim for relief under FEHA and which are raised by way of defense.
If there were no possible affirmative defenses to a disability discrimination claim under FEHA—if every ultimate fact bearing on illegality were necessarily an element of the plaintiff’s cause of action—then Evidence Code section 500 would support the majority’s position. But affirmative defenses do exist. Disability discrimination under FEHA is subject to the health or safety defenses of Government Code section 12940, subdivision (a)(1), discussed earlier in this opinion, as well as the general defense of “bona fide occupational qualification” established by the introductory phrase of section 12940.4 Reference to Evidence Code section 500 thus does not assist in answering the question presented here: Is ability to perform part of the claim for relief or is inability an affirmative defense?
B. Brundage and the McDonnell Douglas prima facie case.
For decisional authority, the majority invokes Brundage v. Hahn (1997) 57 Cal.App.4th 228 [66 Cal.Rptr.2d 830] (Brundage) and other appellate decisions assertedly following it. (Maj. opn., ante, at pp. 257, 260.) In doing so, the majority goes astray in two ways: First, it implicitly confuses the elements of a cause of action under section 12940, subdivision (a)—the issue presented here—with the requirements for indirect proof of discriminatory motive by circumstantial evidence (the McDonnell Douglas prima facie case5 referenced in Brundage)—an issue not involved in this case. Second, as a consequence of the foregoing, it fails to acknowledge that Brundage has nothing to say about the issue before us.
In a brief and expressly nondispositive discussion, the Brundage court stated that one of the ingredients for a so-called McDonnell Douglas prima [275]facie case for disability discrimination is proof the plaintiff is either “a qualified individual” or “ ‘qualified for the job.’ ” (Brundage, supra, 57 Cal.App.4th at p. 236 & fn. 1.) In the case before it, however, the court held summary judgment was proper because the undisputed evidence showed the plaintiff was not fired “because of’ her disability (§ 12940, subd. (a)) but for a nondiscriminatory reason (Brundage, at pp. 236-237); it thus had no occasion to and did not address, even in dictum, the proper allocation under FEHA of burden of proof on ability to perform.
The McDonnell Douglas prima facie case referenced in Brundage is “designed to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ ” (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [83 L.Ed.2d 523, 105 S.Ct. 613].) It does not define the elements of the cause of action and “does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case.” (Swierkiewicz v. Sorema N.A. (2002) 534 U.S. 506, 510 [152 L.Ed.2d 1, 122 S.Ct. 992], italics added; accord, Trans World Airlines, Inc. v. Thurston, at p. 121; see also Rizzo v. Children’s World Learning Centers, Inc. (5th Cir. 1996) 84 F.3d 758, 762 [same as to a disability discrimination plaintiff who proved discriminatory intent by direct evidence].)
The McDonnell Douglas test is inapplicable here, where plaintiff has shown by direct (indeed, undisputed) evidence that defendant terminated him because of his disability. Defendant’s responsible manager told plaintiff at the time that he could not return to his job as a stationary engineer because, due to his hepatitis C, he had not been medically cleared for full duty in that position. (Maj. opn., ante, at pp. 258-260.) The question here was not why the employer took the action it took, but whether the employer’s admittedly discriminatory decision was legally warranted, i.e., was justified by plaintiff’s asserted inability to perform. Irrespective, therefore, of whether a plaintiff generally must show he or she is “qualified” in order to make a McDonnell Douglas prima facie case, plaintiff here had no need to do so because he had sufficient direct evidence he was fired because of his disability.6
Brundage did not hold qualification is an element of the FEHA employment discrimination cause of action, and indeed it is not. Every disparate-treatment plaintiff under FEHA must show that the action complained of was taken “because of’ a prohibited basis. (§ 12940, subd. (a).) Where, as in the [276]usual case, the plaintiff seeks to prove discriminatory intent by circumstantial evidence, the plaintiff indeed will need to show he or she was qualified for the position (or, in a termination case, was competently performing the job) in order to make a prima facie case. But in the relatively rare case where the plaintiff has direct evidence of discrimination, as where the employer has expressly dismissed or refused to hire the plaintiff on a prohibited basis, the plaintiff generally need not also show that he or she can perform.7 This is such a case.
For these reasons Brundage and its progeny are inapposite. Indeed, the only decision (prior to the Court of Appeal’s in this case) that has considered section 12940, subdivision (a)(1)’s history of administrative interpretation and rendered a holding on the burden of proof issue is the Ninth Circuit’s decision in Ackerman v. Western Elec. Co., Inc., supra, 860 F.2d at pages 1518-1519. The Ackerman court agreed with the FEHC that the burden lay with defendants. Oddly, this decision the majority completely ignores.
Conclusion
The majority’s mandate that persons with disabilities be presumed unable to work until they prove themselves able is supported by neither the text nor the history of FEHA. To the contrary, such a presumption is precisely what our antidiscrimination law was designed to combat. In 1973, when a prohibition on physical handicap discrimination was first added to Labor Code former section 1420, the predecessor of Government Code section 12940 (together with the inability-to-perform exception later included in § 12940, subd. (a)(1)), the legislative goal was “to create a positive attitude toward employment of the handicapped and . . . obtain more job opportunities for disabled citizens who are now on welfare rolls.” (Cal. Health and Welf. Agency, Enrolled Bill Rep. on Assem. Bill No. 1126 (1973-1974 Reg. Sess.) Sept. 21, 1973, p. 1.) By barring discrimination on the basis of disability, while allowing employers to defend on grounds of inability to perform, the Legislature sought to overcome the then widespread assumption that disabled people had no place in the workplace. Now, by reading into FEHA a [277]requirement that persons with disabilities must prove their ability to perform before they can complain of discrimination, the majority effectively endorses this legally discredited assumption. For this reason, I dissent.
Kennard, J., and Moreno, J., concurred.
The petition of appellant Dwight D. Green for a rehearing was denied October 10, 2007. Kennard, J., Werdegar, J., and Moreno, J., were of the opinions that the petition should be granted.
All further unspecified statutory references are to the Government Code.
See Dept. Fair Empl. & Hous. v. Cairo (1984) No. 84-04, FEHC Precedential Decisions 1984-1985, CEB 3, page 15 (1984 WL 54284 at p. [11]); Dept. Fair Empl. & Hous. v. Kingsburg Cotton Oil Co. (1984) No. 84-30, FEHC Precedential Decisions 1984-1985, CEB 11, page 28 (1984 WL 54310 at p. [21]).
For the same reason, the majority begs the question in arguing that the burden of proof must logically lie with plaintiffs because, under section 12940, subdivision (a)(1), disability discrimination is not prohibited unless “the adverse employment action occurs because of a disability and the disability would not prevent the employee from performing the essential duties of the job.” (Maj. opn., ante, at p. 262.) The fundamental logical flaw in the majority’s reasoning is its premise that FEHA provides no affirmative defenses to a disability discrimination claim. As discussed above (pt. I.B. of this dissent) and below (pt. II.A. of this dissent), that premise is false.
Section 12940 prohibits discrimination on the specified bases “unless based upon a bona fide occupational qualification.” A bona fide occupational qualification is an employer practice that “on its face excludes an entire group of individuals on a basis enumerated in the Act (e.g., all women or all individuals with lower back defects),” but which is justified because the employer proves that “all or substantially all of the excluded individuals are unable to safely and efficiently perform the job in question and because the essence of the business operation would otherwise be undermined.” (Cal. Code Regs., tit. 2, § 7286.7, subd. (a); see West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983-984 [117 Cal.Rptr.2d 647]; Bohemian Club v. Fair Employment & Housing Com. (1986) 187 Cal.App.3d 1, 19-20 [231 Cal.Rptr. 769].)
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] (McDonnell Douglas).
The McDonnell Douglas test is also inapplicable here because this appeal arises not from summary judgment or nonsuit but from a jury verdict. Once an intentional discrimination case proceeds to jury deliberations, the existence of a prima facie case plays no role—the jury is not instructed on its requisites. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203-205 [48 Cal.Rptr.2d 448].)
For example, if a restaurant’s manager rejects a female applicant for a wait staff position with the explanation that “We only hire men as waiters here,” the rejected applicant can show sex discrimination by direct evidence and need not also prove that she would have been a competent waitress. She has shown the adverse action was taken “because of . . . disability” (§ 12940, subd. (a)) and need not also show qualification, because qualification, while sometimes an ingredient of the McDonnell Douglas prima facie case, is not an element of the cause of action.
Similarly, a disabled plaintiff who (as in this case) shows he was told, “We’re letting you go because your illness makes you unable to do the work” has proven discrimination by sufficient evidence to get to a jury. The employer may attempt to show that the discrimination was not illegal because the illness really did, even with reasonable accommodation, prevent the plaintiff from fulfilling his duties (§ 12940, subd. (a)(1)), but in this situation qualification is a matter for defense, not part of plaintiff’s case.