Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court for the County of Los Angeles. John P. Shook, Judge, Los Angeles County Super. Ct. No. BC325427
The Eisenberg Law Firm, Cara L. Eisenberg and Christie E. Webb for Plaintiffs and Appellants.
Horowitz & Clayton, Craig A. Horowitz and Wayne D. Clayton for Defendant and Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
After nearly three weeks of trial, a jury returned a special verdict finding that the City of Redondo Beach did not discriminate against two employees based on their physical disabilities and did not fail reasonably to accommodate their disabilities. The employees appeal. They argue (1) the City did not meet its affirmative duty to offer them other vacant jobs before it terminated their employment; (2) the special verdict form the trial court used misstated the law; and (3) the court erred in instructing the jury and in refusing an additional instruction during deliberations. We find no merit in these contentions. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We recite the facts in the light most favorable to the judgment.
Teri Courtney and Lillian Ballinger were long-term employees who worked for the City of Redondo Beach in its police department as jailers. (Their formal job title was Community Service Officer (CSO) II.) The duties of the job included taking custody of prisoners from arresting officers; booking and processing prisoners (including photographing and fingerprinting them); searching, transporting, and releasing inmates; and receiving and storing property. Both Courtney and Ballinger were injured at work.
1. Teri Courtney.
In September 2000, Courtney slipped on a wet floor. A doctor examined her and offered to put her on leave. Courtney declined and returned to work the same day on light duty. She continued to work without incident for almost a year and a half. When Courtney got hurt, she was working in the property and evidence department rather than in the jail. However, in December 2001, her rotation in the property department ended and she was transferred to the jail. Courtney wanted to stay in the property department, but her union president told her that her rotation was up. Courtney acknowledged at trial that her request to stay in the property department was not a request for an accommodation and that her union supervisor’s denial of her request was not discriminatory.
Courtney worked in the jail for about three weeks. In February 2002, she told her supervisor, Michelle Mercier, that she was “having problems” and was “working injured.” The next day, Courtney did not come to work. Her physician, Dr. Emmanuel, put her on temporary total disability, and she began a lengthy disability leave.
The City sought to return Courtney to her job. In January 2003, a doctor, Jeffrey Berman, conducted a “qualified medical evaluation” to assess her ability to work. Dr. Berman concluded that Courtney had reached a “permanent and stationary” status, and did not require ongoing treatment. Berman reported that she could not return to her previous job, but -- if modified duties were available -- she could return to work in a light duty capacity. He ordered a heavy lifting preclusion, as well as a restriction on repetitive overhead activities on her left side. In accordance with Dr. Berman’s conclusions, the City asked Courtney to return to work on March 4, 2003. The City told her they would “work together to ensure the restrictions are followed.”
On March 4, 2003, Courtney reported to work, but stayed for only a couple of hours. She gave the City a note from her doctor, Dr. Emmanuel. The note said that Emmanuel had examined Courtney the day before, that he considered her temporarily totally disabled for two more weeks, and that he would examine her again in two weeks.
On April 9, 2003, Dr. Emmanuel again examined Courtney. He concluded she could return to work on April 23, 2003, if she did not lift more than 20 pounds and avoided over the shoulder work. Courtney then changed doctors. She gave the City a certificate from Dr. Steven Nagelberg, who found on April 22, 2003, that Courtney was temporarily totally disabled.
Meanwhile, the City was struggling to operate the jail with five, rather than the full complement of eight, jailers. In August 2003, several months after Dr. Nagelberg put Courtney on further disability leave, John Baker, the City’s Director of Management Services, decided to terminate Courtney. When he did so, he did not know of any openings for a “municipal services officer,” a position for which Courtney may have been qualified even with her disability. Baker kept track of all the full-time job vacancies the City had, and believed his information – that no vacant positions existed when he terminated Courtney – was accurate. On August 6, 2003, Baker wrote to Courtney, terminating her employment as of August 9, 2003. Baker’s letter stated that Courtney had been on leave for more than 450 days; that she had not been medically certified to return to work; and that the City needed permanently to fill her position. Baker also advised Courtney that the City was willing “to engage in the interactive process” if (1) Courtney were released to come back to work, performing the essential functions of the jailer job with any reasonable accommodations, and (2) there were a jailer position open.
Courtney never was released to return to work in her jailer position, and she did not ask the City about any other positions. Instead, Courtney promptly applied for disability retirement. The California Public Employees Retirement System (CALPERS) approved her application on March 9, 2004, finding her incapacitated for the performance of her duties as a CSO based on her orthopedic condition.
Several months after her termination, Dr. Nagelberg reevaluated Courtney and issued a “permanent and stationary” report, concluding she could not return to her job as a CSO because it required heavy lifting, repetitive bending, stooping, and other activities Courtney no longer could perform. Courtney did not tell Dr. Nagelberg that she had been terminated from her employment.
2. Lillian Ballinger.
In December 2000, Lillian Ballinger reported to the City that she suffered from bilateral carpal tunnel syndrome. At the same time, Ballinger moved to Apple Valley, more than 100 miles from Redondo Beach. Ballinger asked for a reduced work schedule, and the City accommodated her request.
In June or July 2001, Ballinger began a leave of absence that continued until late December 2002. During that time she had surgery on both hands and physical therapy. In late December 2002, Ballinger was released to return to work with limitations. She used some vacation time, then returned to work in January 2003.
Ballinger worked until March 2003. During that time, she could not perform many of the usual duties of the jailer position, such as searching inmates in the jail, taking custody of prisoners, and fingerprinting inmates. She could not perform any duty that required her to be in close contact with inmates because of her physical inability to handle a confrontation. The City accommodated these limitations, but Ballinger’s hands began to hurt and her doctor again put her on disability leave. She remained on disability leave from March 2003 until September 2003, when Baker terminated her, effective September 5, 2003. Baker’s letter to Ballinger was identical to his letter to Courtney, except to state that Ballinger had been on leave for more than 658 days.
Ballinger did not express any interest in any other job at the City, and after her termination never told City personnel that she could return to work with reasonable accommodation. Instead, Ballinger, like Courtney, applied for disability retirement. CALPERS approved her application on March 26, 2004, finding she was incapacitated for the performance of her duties as a CSO II based on her orthopedic condition.
3. The lawsuit.
In December 2004, Courtney, Ballinger, Jo Ellen Latham (an identification technician for the police department), and Elizabeth Blatt filed this lawsuit against the City of Redondo Beach, alleging numerous violations of California’s Fair Employment and Housing Act (FEHA). Blatt’s claim was settled before trial. The case was tried to a jury on two causes of action each as to Courtney, Ballinger, and Latham: discrimination based on physical disability and failure reasonably to accommodate the employee’s disability. At the conclusion of a trial lasting nearly three weeks, the jury found, in a special verdict, that neither Courtney nor Ballinger had proven that the City intentionally discriminated against them based on their physical disabilities or that the City failed reasonably to accommodate their disabilities. (The jury could not reach a verdict on Latham’s claims.) The court entered judgment for the City on the claims of Courtney and Ballinger, and denied their motion for a new trial. Courtney and Ballinger filed this appeal.
DISCUSSION
Courtney and Ballinger assert prejudicial error. They claim that (1) vacant positions (other than their CSO II positions) existed that they were qualified to perform despite their disabilities; (2) the City had an affirmative duty to explore reassignment to those vacant positions as a “final accommodation”; and (3) the City violated that duty by failing to discuss reassignment with them before terminating them. As we explain, appellants’ contentions are without merit.
We first outline the applicable legal principles. We then discuss the specific claims of error that Courtney and Ballinger make.
A. Unlawful employment practices related to employees with physical disabilities.
FEHA outlaws several employment practices relating to physical disabilities. As relevant here, it is an unlawful employment practice:
Because of a physical disability, “to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (Gov. Code, § 12940, subd. (a).) This provision does not prohibit the discharge of an employee with a physical disability where the employee “is unable to perform his or her essential duties even with reasonable accommodations . . . .” (Id., subd. (a)(1).)
All further statutory references are to the Government Code, unless otherwise specified.
“[T]o fail to make reasonable accommodation for the known physical . . . disability of an applicant or employee,” unless the accommodation is shown to produce undue hardship to the employer’s operation. (§ 12940, subd. (m).)
“[T]o fail to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical . . . disability . . . .” (§ 12940, subd. (n).)
Separate causes of action exist for each of these unlawful practices. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) In this appeal, Courtney and Ballinger focus principally on the City’s alleged failure to accommodate their disabilities. This claim implicates several other governing legal principles. As relevant here:
The employees were required to prove the City failed to provide reasonable accommodation for their physical conditions. The reasonableness of an accommodation generally is a question of fact. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. 11 (Hanson).)
An employer has a duty to reassign a disabled employee who cannot otherwise be accommodated, “‘if an already funded, vacant position at the same level exists.’” (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 (Spitzer).) An employer is relieved of this reassignment duty “if there is no vacant position for which the employee is qualified.” (Ibid.)
The employer's obligation to engage in the interactive process “extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” (Humphrey v. Memorial Hospitals Ass’n. (9th Cir. 2001) 239 F.3d 1128, 1138.)
The employer is not required to hold a disabled employee’s job open indefinitely. (Hanson, supra, 74 Cal.App.4th at pp. 226-227.)
B. Appellants’ claims of error.
With the governing law in mind, we turn to appellants’ four claims of error.
1. The evidence was sufficient to sustain a defense verdict on Courtney and Ballinger’s claim that the City failed reasonably to accommodate their disabilities.
The essence of appellants’ argument is that the City had an affirmative duty, before terminating them, to discuss with them a reassignment to other vacant positions for which they were qualified. Because the City did not discuss reassignment with them and because vacant positions existed, they say, the evidence does not sustain the jury’s verdict for the City. This argument runs aground on the faulty premise that it was “undisputed” that other vacant positions existed that Courtney and Ballinger were qualified to perform and could perform despite their disabilities. In fact, the evidence permitted the jury to conclude that no vacant positions suitable for Courtney and Ballinger existed when they were terminated.
Appellants cite two positions for which they claim to have been qualified despite their disabilities: municipal services officer (MSO) and police cadet. Baker testified that he kept track of full-time vacancies, and that no MSO vacancy existed when he terminated Courtney and Ballinger. The City advertised an opening for an MSO on September 14, 2003, but that was after both Courtney and Ballinger had been terminated. Appellants argue that the job bulletin and advertisement would have been prepared before that date, but no evidence was presented of how long it took to prepare the job bulletin or when the City knew there would be a vacancy. In short, the jury was free to conclude from the evidence that no vacancy existed for an MSO when Courtney and Ballinger were terminated.
Evidence that Courtney and Ballinger were qualified for these positions came from an expert witness who examined their records; their own doctors did not testify.
As for the police cadet position, it was undisputed that jobs in this category were continuously available. But “police cadet” was a part-time position with no benefits. Neither Courtney nor Ballinger ever expressed any interest -- either before or after their terminations -- in part-time work without benefits. Even if the City had offered appellants these positions, that offer would not have constituted an accommodation under the law. The employer’s duty is “‘to reassign a disabled employee if an already funded, vacant position at the same level exists.’” (Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 972-973, italics added by Hastings court; Spitzer, supra, 80 Cal.App.4th at p. 1389; see 29 C.F.R. § 1630.2(o) (2007) Appen., p. 374 [under Americans with Disabilities Act, on which FEHA is modeled, “[e]mployers should reassign the individual to an equivalent position, in terms of pay, status, etc., if the individual is qualified, and if the position is vacant within a reasonable amount of time”].) Accordingly, the City had no affirmative duty to offer Courtney and Ballinger part-time positions with no benefits.
Moreover, FEHA requires the employer to engage in a good faith, interactive process with the employee “in response to a request for reasonable accommodation by an employee” (§ 12940, subd. (n)), and “it is the employee’s burden to initiate the process . . . .” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22.) The employee “ ‘ “can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.” ’ ” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) Here – even if the offer of a part-time job without benefits were a reasonable accommodation – the jury could have concluded the City reasonably believed neither Courtney nor Ballinger had any interest in such a position, because (a) they never requested part-time work without benefits as an accommodation, and (b) they had moved to locations in Yucca Valley (upper Palm Springs) and Apple Valley, respectively, both lengthy commutes to Redondo Beach.
In sum, it is the jury’s role to decide whether an employer has reasonably accommodated an employee’s disability. (See Hanson, supra, 74 Cal.App.4th at p. 228, fn. 11.) Ample evidence supported the jury’s conclusion that the accommodations the City provided were reasonable. The City gave Courtney two successive and extended disability leaves. The City gave Ballinger reduced work hours, two extended disability leaves, and reduced responsibilities when she returned to work between leaves. Neither employee expressed any desire to return to work for the City in any capacity, either before or after her termination. Nor did the City violate its legal duty to reassign Courtney and Ballinger to another equivalent job for which they were qualified – the MSO position – because the evidence showed no such positions were available when they were terminated. The evidence fully supported the jury’s conclusion, as to both Courtney and Ballinger, that the City did not fail reasonably to accommodate their disabilities.
Courtney cites her testimony that she “begged Mercier [the jail supervisor, who was in contact with Courtney and Ballinger periodically during their leaves of absence] to see if she could be transferred to another assignment or another job . . . .” Similarly, Ballinger testified that she asked Mercier if she could return to a job other than one in the jail. But Mercier’s testimony contradicted Courtney and Ballinger, and the jury apparently believed Mercier.
The employees also contend the jury’s verdict on their disability discrimination claim – finding that the City did not intentionally discriminate against them based on their physical disabilities – was not supported by substantial evidence. This argument, like the argument on reasonable accommodation, rests on the notion that the City terminated Courtney and Ballinger without first offering to reassign them, and it fails for the same reasons.
2. The inclusion of the word “discriminatorily” in the special verdict form was not prejudicial error.
Courtney and Ballinger challenge language in the special verdict form. They contend it was improper to ask the jury: “Has Plaintiff [Courtney or Ballinger] proven that the City discriminatorily failed to reasonably accommodate her disability?” They say the use of the word “discriminatorily” prejudicially raised their burden of proof. Appellants argue that a failure to accommodate claim under FEHA is different from a disability discrimination claim, and that a plaintiff need not prove intentional discrimination as an element of a claim that the employer failed to accommodate the employee’s disability. That argument is correct as far as it goes. Here, however, the trial court properly instructed the jury on each of appellants’ claims. Any error in the verdict form itself was not prejudicial.
As noted, separate causes of action exist for (1) discharge, refusal to hire, or discrimination in the terms, conditions, and privileges of employment based on disability; (2) an employer’s failure reasonably to accommodate an employee’s known disability; and (3) an employer’s failure to engage in a good faith interactive process to determine an effective accommodation, “once one is requested.” (Gelfo, supra, 140 Cal.App.4th at p. 54.) Each cause of action requires different elements of proof. Appellants’ claims for disability discrimination required them to prove that they were able to perform their essential duties with reasonable accommodation; that the City discharged them; and that their physical disabilities were a motivating reason for the discharges. The trial court instructed the jury on each of these elements. Appellants’ claims of failure to accommodate, by contrast, required them to prove only that the City failed to provide reasonable accommodation for their physical conditions. The court instructed the jury on this cause of action as well.
The difference between the two claims is plain. In the first, Courtney and Ballinger had to prove there was an adverse employment action (their discharges). In the second, they did not. However, both actions by an employer – discharging an employee because of a disability and failing to accommodate an employee’s disability – are “unlawful employment practice[s]” (§ 12940), and both are, in common parlance, forms of discrimination against persons with disabilities. (See Spitzer, supra, 80 Cal.App.4th at p. 1383, fn. 2 [“‘[t]he failure to accommodate is included within the concept of illegal discrimination’”]; Hanson, supra, 74 Cal.App.4th at p. 227 [“Hanson contends that Lucky discriminatorily failed to accommodate his disability”].) Both practices are forbidden and both are -- by virtue of the statute and by their very nature -- discriminatory.
The inclusion of the word “discriminatorily” in the verdict form was unnecessary at best and potentially confusing at worst. But any error undoubtedly was not prejudicial. The trial court gave Judicial Council of California Civil Jury Instructions (2007), CACI Nos. 2540 and 2541, as well as several special instructions that appellants requested. These correctly instructed the jury on the elements of the failure to accommodate claim. Defense counsel did not argue to the jury that the plaintiffs needed to show a discriminatory intent or motive to establish a failure to accommodate. Indeed, the plaintiffs’ counsel argued essentially that the failure to accommodate under section 12940 (m) was a form of discrimination under section 12940 (a). Under these circumstances, it is not reasonably probable that the jury’s decision could have been different had the verdict form omitted “discriminatorily.” (Kostecky v. Henry (1980) 113 Cal.App.3d 362, 372-373.)
3. The trial court did not abuse its discretion by refusing to give additional instructions during jury deliberations.
After more than a day and a half of deliberations on the claims of the three plaintiffs (Courtney, Ballinger, and Latham), the jury notified the court that it had a decision on two counts, but would not reach a majority of nine on the last count, even with more discussion. The court asked the jury to make one more effort “as to that one count that you are unable to decide on.” Shortly thereafter, the jury sent out a question:
“Does the City have the legal obligation to begin the accommodation and interactive process prior to the employee being released by her doctor to return to work with or without restrictions?”
The court discussed the question with counsel. Counsel for the employees argued the court should instruct the jury that “the interactive process starts once the employer knows of the disability.” The court noted it already had given the jury the CACI instruction on reasonable accommodation (CACI No. 2541) as well as a special instruction at the employees’ request:
“The Employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.”
Appellants’ counsel then asked the court to reread this special instruction. The court declined. The court observed that, if it reread the quoted instruction, it also should reread several other instructions, including those stating that the employer need not hold a job open indefinitely and that the employer has no liability if the interactive process broke down because of the employee’s action. The court “[didn’t] want to tip the scale one way or the other” by singling out an instruction; “[t]he danger in doing that is that it emphasizes one area to them . . . .” The court concluded the appropriate response to the question was to tell the jury that the instructions already given covered the question.
Later in the afternoon, the jury advised the court that, after renewed deliberations “per your request,” the jury could not reach a nine-vote majority on the final count. The court then declared a mistrial as to Jo Ellen Latham, and the defense verdicts on the claims of Courtney and Ballinger were read.
Appellants contend the trial court’s refusal to give the new instruction they requested, or to reread the special instruction quoted above, prejudiced their case “and likely caused the resulting defense verdicts.” We cannot agree. First, it is apparent that the jury already had reached verdicts as to Courtney and Ballinger before it posed its question. Therefore, it is difficult to see how the court’s action, even if erroneous, could have been prejudicial to Courtney or Ballinger. Second, even if we assume the jury would have reconsidered the verdicts it already had reached, we see no error in the trial court’s decision to refer the jury to the instructions already given. Those instructions “in composite suppl[ied] the jury with a well-balanced statement of the necessary legal principles.” (Murrell v. State of California ex rel. Dept. of Pub. Wks. (1975) 47 Cal.App.3d 264, 270.) Indeed, the instructions included several special instructions requested by Courtney and Ballinger on the accommodation and interactive process, including the employer’s affirmative duty to make known to an employee other suitable job opportunities. The trial court’s decision that it would be unfair to reread one instruction without rereading the others, and instead to tell the jury that it had been given “all of the law that applies to this case,” was sound. Appellants have shown no abuse of discretion.
4. The trial court did not err in instructing on judicial estoppel.
Courtney and Ballinger also challenge the trial court’s instruction on judicial estoppel. Over their objection, the court instructed the jury:
“The law does not permit a party to a lawsuit to profit by taking contradictory factual positions in order to obtain a double recovery. Specifically with respect to this case, this means that if you find that [Courtney or Ballinger] sought a disability retirement from the Defendant City of Redondo Beach on the grounds that she/they were not physically able to perform the essential functions of her jailer . . . job with the City, then you may not award Plaintiffs any recovery for any failure to reasonably accommodate their disabilities, including termination of their employment.”
Appellants contend this instruction misstates the law, “because it does not take into account the City’s duty to first offer a reasonable accommodation of reassignment to another vacant job.” In other words -- appellants say -- their assertions in their retirement applications that they could not perform their duties as jailers were not necessarily inconsistent with their claims in court that they were ready, willing and able to work at other vacant jobs. (See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 962-963 [grounded pilot’s receipt of disability benefits did not answer the question whether employer violated FEHA by failing to make known to employee other suitable job opportunities not involving flight certification].)
Appellants’ argument rests on the same faulty premise as their other claims of error. When the jury found there was no failure reasonably to accommodate Courtney or Ballinger, it presumably credited the City’s evidence that no vacant MSO jobs existed when they were terminated. The jury also apparently concluded there was nothing unreasonable in the City’s failure to offer appellants part-time jobs with no benefits. In short, even if the instruction were erroneous or should have been modified to fit appellants’ theory of the case – a modification they did not request – appellants cannot show any prejudice. (See Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213 [to persuade an appellate court to overturn a jury verdict because of instructional error, an appellant must demonstrate the error was prejudicial and resulted in a miscarriage of justice; instructional error is prejudicial when it appears probable that the improper instruction misled the jury and affected the verdict].)
DISPOSITION
The judgment is affirmed. The City of Redondo Beach is to recover its costs on appeal.
We concur: COOPER, P. J., RUBIN, J.