Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment and orders of the Superior Court of San Diego County, Super. Ct. No. GIN035920 Michael M. Anello, Judge.
HUFFMAN, Acting P. J.
We review a defense verdict and related pre- and post judgment orders in an employment discrimination action. Plaintiff Wilton Thomas Anderson (appellant) sued his former employer, the Board of Trustees of the California State University, San Marcos (University), on several causes of action arising out of alleged disability discrimination and failure to reasonably accommodate his job-related needs in light of his disability, post polio syndrome (PPS). (Fair Employment and Housing Act (FEHA); Gov. Code, § 12900 et seq.; all further statutory references are to this code unless noted.)
Initially, the trial court granted summary adjudication in favor of University, disposing of appellant's cause of action seeking damages for retaliation and constructive termination, allegedly related to his filing of a discrimination claim under FEHA. (Code Civ. Proc., § 437c, subd. (f).) The matter then went to jury trial on the remaining theories, that he was denied reasonable accommodation for his disability in his teaching assignments and schedule, and the University had refused to engage adequately in the interactive process required by FEHA for doing so. (§ 12940, subds. (a), (m), & (n).) The jury rendered a verdict in favor of University, and the trial court denied appellant's post trial motions for judgment notwithstanding the verdict ("JNOV") and new trial. Judgment was entered accordingly.
Appellant challenges the judgment in several ways. First, he contends that the jury verdict was tainted by juror misconduct that led the jury members to disobey the instructions. Next, he argues no substantial evidence supports the judgment for University, and the trial court erroneously denied his JNOV motion for that reason. He further argues that prejudicial evidentiary error occurred when testimony by his human resources expert was excluded. Finally, he contends that the summary adjudication ruling upon the retaliation claim was incorrect, because triable issues of fact remain regarding whether actions taken by University staff were pretextual to achieve unlawful disability discrimination.
We conclude the record does not support the claims of prejudicial jury misconduct or evidentiary error. We also find that the judgment is adequately supported by substantial evidence, and the denial of JNOV was appropriate. The summary adjudication ruling is supported by the record as well. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In outlining the sequence of events in this case, we have the benefit of the trial court's summary adjudication ruling that addressed and disposed of the original disability and age discrimination claims, leaving for trial the failure to accommodate and failure to conduct properly the interactive process to accommodate. This summary adjudication ruling exhaustively sets out the backdrop against which all these events took place, involving many problems at the University about the manner in which work was assigned to business professors. These problems included July 2001 reforms brought in by one of many deans who had served at the University, and then a faculty grievance that rolled back those reforms at some of the relevant time periods. We next summarize the facts about appellant's particular situation.
A. Background and Filing of November 2001 DFEH Complaint
Appellant contracted polio as a child, has a shortened and atrophied leg, and residual health problems. He has a Ph.D. in marketing and had a successful career as a professor and academic writer in his field, including 22 years as a professor in Texas. As an adult, beginning in 1995, he began to suffer from PPS, which is a delayed consequence of polio in which the aging process complicates the destruction of nerve cells, and worsens over time.
Beginning in 1992, appellant was employed by University as a full professor in its College of Business (COBA or business school). The business school has both undergraduate and graduate students. Appellant was on sabbatical during part of 2000 and was writing a textbook on entrepreneurship in 2001. From 1995, he noticed that his symptoms were getting worse, such as fatigue and pain, and he got a new brace and a disabled parking placard. He also exercised to keep up his strength. In 2001, he learned that he had Epstein-Barr syndrome, which was contributing to his fatigue. However, he generally preferred to keep his current health status confidential.
Until the spring of 2001, appellant carried a teaching load during most semesters of two lecture courses and other work, including supervision of student projects (senior experience teams and MBA), and doing research and service. At that time, a normal load for a professor was considered to be nine units (weighted teaching units, or WTU's), which he met. Also until 2001, appellant's contract allowed him to obtain overload pay for the second lecture course he was teaching, due to the total amount of units he worked, similar to other professors' contracts.
In July 2001, a new dean of COBA was appointed, Dean Mohamed Moustafa, and he increased the normal load for a full professor to 12 units instead of nine. This could still include the same components of research and service, but more direct teaching was required (lecture courses, discussion courses, or supervision of student projects, MBA and senior experience teams). (In some cases, a total of 9 or 10 units was also considered to be full-time.) Many faculty members, including appellant, brought a grievance, which took some time to resolve. By the fall of 2002, Dean Moustafa had been replaced by Dean Dennis Guseman, and the normal teaching load was restored to nine units pending resolution of the grievance.
Meanwhile, in July 2001, Dean Moustafa's interim associate dean, Beverlee Anderson (B. Anderson) was in charge of revising the Fall 2001 schedules of professors. She notified appellant that he would be assigned to teach four lecture courses, without assigning him any alternative work (supervision of student projects, MBA or senior experience teams). Appellant believed that four lecture courses was too physically draining for him. He responded by e-mail to B. Anderson that he found it was more labor-intensive to teach graduate students (such as in the BA 640 class, which he had helped design) than undergraduates (such as in the SSM 305 class). He accordingly objected to the increased workload and offered to teach three undergraduate classes and supervise various MBA projects. He also requested workload credits for his research and writing and sought extra pay for the extra work, as previously allowed by his contract.
In response, on July 26, 2001, B. Anderson made a different offer to appellant of two undergraduate lecture courses (SSM 305) and one graduate lecture class (BA 640), stating that the third undergraduate course he wanted could not be rescheduled. On July 29, 2001, appellant sent B. Anderson an e-mail attaching information about his previous agreement for overload compensation with a supervisor, Jack Leu.
In mid-August 2001, appellant discussed disability retirement options with the University's benefits coordinator, due to his increasing fatigue, and she referred him to the ADA coordinator in the human resources department, Ellen Cardoso. He told Cardoso it was impossible for him to meet the increase in teaching load that fall term, due to chronic fatigue and complications. Cardoso gave appellant a "reasonable accommodation request" form and notified B. Anderson that she needed a job description to understand the physical demands of the job. B. Anderson responded that she thought such accommodation meant supplying things such as adjustable chairs or special equipment, and she did not believe that a request to do fewer classes than others should amount to an "accommodation." She asked who was asking for accommodation, as it could affect her planning. When Cardoso told her it was appellant, B. Anderson researched his past schedules, which showed he normally taught two lecture courses per semester.
In the definitional sections of FEHA, section 12926, subdivision (n), "reasonable accommodation" is defined as including either of the following: "(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." (See also Cal. Code Regs., tit. 2, § 7293.9, to the same effect.)
In mid-August, appellant consulted a medical specialist and asked his primary care physician, Dr. Lovell, to fill out the disability form attached to the reasonable accommodation request form. Dr. Lovell filled out the form to indicate appellant was having difficulty performing the essential functions of his job, teaching, research, and service. The form as submitted on August 20, 2001 stated that appellant and his doctor both sought "reduction in teaching load to two courses only for the fall term."
On August 16, B. Anderson forwarded appellant's previous e-mail to her, in response to the proposed schedule, that had attached information about his previous agreement for overload compensation. She forwarded it to Cardoso and to the University's vice president for faculty affairs, Mary Elizabeth Stivers, saying, "you will see that he was willing to teach this (third) course, but for extra pay." Stivers responded to Cardoso that this "sure puts a hole in his claim" (apparently his disability claim).
Appellant's reasonable accommodation forms were referred to Melody Kessler, the University's director of human resources. She consulted with B. Anderson and on August 21, 2001 transmitted to him an offer of two options, both providing a two course schedule (six units), but at 50 percent of the required work load and pay (or 75 percent if unspecified research or service were added, to make nine units). Appellant objected that he needed to remain at full salary. Kessler told him about other options, such as an early retirement with part-time teaching, or other options. Appellant continued to request full pay with a reduced class load. On August 23, he then told Kessler he would work full time in order to get full pay. They apparently did not discuss alternative work assignments, such as supervision of student projects, MBA or senior experience teams. Kessler told him he needed a doctor's release to perform full-time work.
On August 27, appellant submitted an addendum to the disability verification form from his doctor, Lovell, stating that appellant could perform the essential functions of his job and a full workload without accommodation. However, Dr. Lovell's addendum also stated, "My evaluation of patient's disability remains the same. But since patient states he cannot afford the loss of pay associated with the accommodation previously recommended and insists he can handle the workload required to receive full pay, I therefore permit him to assume the workload required for full pay without accommodation and I will monitor his health more closely." Kessler sent a letter to appellant confirming that he would be teaching the three assigned lecture courses for the Fall 2001 semester. She reiterated that a reduced workload could be provided, with compensation adjusted accordingly. Appellant later learned that two other professors with similar loads received overload pay, as had been previously allowed under the old policies, but appellant's request for the same was not transmitted to the dean.
In October 2001, appellant asked Dr. Lovell to provide documentation for an outside application for disability benefits, and he did so, stating appellant was totally disabled. Appellant also saw a neurologist, Dr. Romine, who provided a statement to the disability insurer, also stating that appellant should stop working as of August 29, 2001. Later, in June of 2002, appellant filed forms with the Social Security Administration stating that he was suffering from extreme fatigue and pain and could not perform the essential functions of his job.
In November 2001, appellant filed a claim with the DFEH, alleging that University had discriminated against him on the basis of his age and disability. The DFEH then gave him a right to sue letter. (§ 12965.)
During the spring of 2002, appellant again taught three lecture classes and at some time in the spring or summer apparently supervised some senior experience projects. He did not take any sick leave that school year. (See part III, post.)
After Dean Moustafa resigned in January 2002, Dean Guseman took over during that very tumultuous time. The faculty grievance was pending and the MBA program was being audited by the chancellor's office. In May of 2002, a student complaint that appellant had not spent enough time with that particular senior experience project was referred to Dean Guseman. He decided to investigate it and not to assign any further senior experience projects to appellant until the investigation was completed. He did not follow the existing student grievance procedure of referring the student back to appellant at that time.
At that time, appellant's proposed Fall 2002 assigned schedule was to teach two lecture classes and to supervise two senior experience teams, for a total of 10 units (considered full-time). However, instead of the senior experience teams, the dean planned to reassign appellant an existing third lecture class (marketing, which he had taught before), and he scheduled an August 22, 2002 meeting to discuss the student complaint and the proposed third lecture class. At the meeting, appellant said he had an accommodation form in place that provided that only two lecture classes could be assigned to him. The meeting was adjourned and Dean Guseman investigated that claim.
Dean Guseman notified appellant on August 26 that the existing addendum to the reasonable accommodation request provided that appellant was medically able to perform the job and did not need any accommodation to perform the essential functions of the position. The dean offered to follow up if further accommodation was requested. Appellant proposed four different options, all involving teaching two lecture classes with other options, including supervision of senior experience projects for that or a future term, or additional research or service. The dean did not want to disrupt the staffing of existing senior experience teams so he found someone else to teach the third lecture class, but he notified appellant on September 3, 2002 (the day before class was to start), that appellant would be responsible for 10 units for the Spring 2003 term. However, on September 5, 2002, appellant told University he was too sick to work, retired on disability, and brought this action for damages.
B. Filing of Action; Summary Adjudication Motion/Order (Retaliation)
In his first amended complaint, appellant brought nine causes of action alleging disability discrimination, failure to make reasonable accommodation, retaliation, and he sought compensatory and punitive damages for a constructive discharge. Appellant alleged that he could have performed all his job responsibilities with reasonable accommodation but although he had requested an adjusted schedule, and had filed a DFEH claim, no sufficient accommodations were made. He contended that the University had not properly carried out the required interactive process to seek an acceptable accommodation for his disability. Further, he contends that the actions taken were pretextual in nature and discriminatory.
Section 12940, subdivision (n) states that it is an unlawful employment practice: "For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition."
On April 11, 2003, appellant filed his second DHEH complaint against University, also charging age and disability discrimination, and retaliation. A second right to sue letter was issued. (§ 12965.)
The University filed its motion for summary adjudication of all causes of action. With respect to the failure to accommodate claim, University argued the evidence demonstrated that after some negotiations, appellant notified them and provided medical documentation that he could work a full-time schedule for full-time pay, and no accommodation was necessary. They also argued the interactive process had been carried out adequately, and all of the employer actions taken had represented legitimate nondiscriminatory administrative decisions, such that no retaliatory conduct had occurred. They submitted a declaration by Dean Guseman, stating that when he requested appellant to teach a third lecture course in the fall of 2002, he did not know there was a DFEH complaint on file, and he had not retaliated against appellant at any time.
In opposition, appellant argued the evidence demonstrated triable issues of fact on whether University could have reasonably accommodated his disability, since he was willing to continue to teach two classes in the manner to which he had become accustomed. He claimed the actions in rescheduling his work were a pretext for disability discrimination or retaliation for filing the DFEH claim. Defendant filed reply papers.
The trial court issued an extensive ruling analyzing the arguments on the motion for summary adjudication. The court adjudicated in University's favor the claims for disability discrimination, age discrimination, and retaliation. However, summary adjudication was denied regarding the two remaining theories (i.e., accommodation and the interactive process), because it should be a jury question on whether the accommodation options offered to appellant in 2001 were reasonable, since they included a cut in pay. The court noted that the University did not supply evidence to show it had proposed a combination of lecture courses and other work that would amount to a full-time position. The court did not believe that appellant had ever denied the need for an accommodation, since the addendum to the doctor's note made it clear that plaintiff was continuing full-time work because of financial need. The court did not reach any accommodation issues about Fall 2002.
In the summary adjudication ruling, the court also found triable issues about whether the interactive process had been sufficiently carried out, in light of the options offered that both required a pay cut and/or retirement.
C. Jury Trial: Complaint
The matter went to jury trial on appellant's theories that the University had failed to make reasonable accommodations in the workplace, which would have been possible without any undue hardship to the employer (§ 12940, subd. (m)); or alternatively, it had failed to respond to his particular needs by conducting in an acceptable manner the required interactive process to reach an accommodation for his disability (§ 12940, subd. (n)).
Both sides presented percipient testimony about their respective understandings of the scheduling controversy and the participation of various individuals during the negotiations. Appellant contended that the University staff never asked him why it was important to him to limit his lecture course load or how his disability affected his performance of the essential functions of the job, or why the alternative forms of work (supervising student projects) were physically easier for him.
Also, appellant offered opinion testimony from an expert in the field of human resources, Dr. Lewin, about different policies and procedures relating to reasonable accommodation requirements and the interactive process, all stemming from the ADA. Dr. Lewin's experience in dealing with accommodation issues included work with UCLA, Cornell, and Rutgers. The University objected to the proposed testimony and a hearing under Evidence Code section 402 was held. The trial court excluded the proposed testimony on grounds that it would invade the province of the jury, and did not include any written policy, procedure or standard that would be helpful in measuring the conduct of this particular defendant. The court planned to instruct the jury what the ADA provides, and it would be up to the jury to determine whether the conduct of the defendants complied with FEHA requirements.
In its defense case, the University argued that appellant represented his condition differently to different people, and was playing the system, without justification. The University contended that it offered appellant a number of options that were consistent with his requests and those of his doctor, first involving the teaching of two lecture classes, and then a full-time schedule based on the doctor's addendum to the accommodation form.
In closing argument, appellant's counsel relied in part on his original July 2001 request for research credit for writing his book, and argued that it was defendant's burden to award such credit as a reasonable accommodation. Appellant pointed out that Dean Moustafa's deposition testimony said he never told B. Anderson not to allow such credit for appellant. In response, counsel for University argued that to its knowledge, once the disability forms were filed, appellant was no longer requesting such alternative forms of work, but only a workload of two lecture classes. However, the 75 percent offer had included three units of research for some project to be determined, but appellant rejected that option. Counsel for the University said that the interactive process should be evaluated only for the dates between August 13 and 28, when the part-time offers were rejected, because appellant never responded to Kessler's statement that further discussions could be held if necessary.
After instructions and deliberations, the jury reached its special verdict, which ruled separately on the events of the 2001 and 2002 semesters. It voted 11 to 1 in favor of the University, finding that there had been no failure to engage in the interactive process nor any failure to offer or provide reasonable accommodation in Fall 2001. Regarding Fall 2002, the jury voted nine to three that appellant was unable to perform essential job functions, even with reasonable accommodations.
D. Posttrial Proceedings
Subsequently, appellant filed motions for JNOV and new trial. The new trial motion raised issues of juror misconduct, in that their discussions had included personal experience and other problems (to be described later). The JNOV motion mainly argued that the University had not shown it would be a hardship to reasonably accommodate appellant by giving him a workload consisting of two lecture courses and other duties. Other arguments made then are not pursued on appeal (exclusion of evidence about the workload dispute in light of the applicable collective bargaining agreement or contract issues; validity of the defense medical expert's opinions as based on speculation).
In denying the posttrial motions, the court reasoned that once the inadmissible portions of the juror declarations were excluded, as showing their thought processes, then the remaining evidence did not establish that misconduct had occurred or that the right to a fair trial was prejudiced. Substantial evidence supported the verdict for the University.
Appellant timely filed his notice of appeal of the judgment.
DISCUSSION
Before we can address the sufficiency of the evidence in support of the judgment, we must first examine the alleged evidentiary error and jury misconduct issues raised on appeal. We will then address the ruling of the trial court in denying the new trial and JNOV motions, with respect to the 2001 sequence of events. Finally, the summary adjudication of the retaliation cause of action, based on the 2002 events, will be analyzed. Our standards of review will be set forth in each separate section. First, however, we set forth basic principles that govern actions such as this one, brought under FEHA.
I
APPLICABLE FEHA PRINCIPLES
A. Reasonable Accommodation
Under FEHA, it is "an unlawful employment practice, unless based upon a bona fide occupational qualification . . . [¶] (a) For an employer, because of the . . . physical disability . . . of any person . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (§12940, subd. (a).) Section 12940 includes among the proscribed unlawful employment practices: "(m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee [short of a hardship to the employer's operation]."
In Green v. State (2007) 42 Cal.4th 254, 262, our Supreme Court clarified that section 12940 does not forbid an employer from drawing any distinctions on the basis of physical or mental disability: "Rather, drawing these distinctions is prohibited only if 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, at least not with reasonable accommodation. Therefore, in order to establish that a defendant employer has discriminated on the basis of disability in violation of the FEHA, the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation." (Green, supra, at p. 262; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254-255.)
An employee who alleges disability discrimination or failure to accommodate the disability must ultimately prove the employment action taken was based upon the physical disability. "Since direct evidence of such motivation is seldom available, the courts use a system of shifting burdens as an aid to the presentation and resolution of . . . discrimination cases. [Citations.]" (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002 (Hersant).) This burden-shifting system requires the employee to first establish a prima facie case of disability discrimination, or failure to accommodate a known disability. (Ibid.) "A prima facie case for discrimination on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability. [Citations.]" (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.)
An "adverse employment action" is a "substantial" or "material" adverse change in the terms and conditions of the plaintiff's employment, not merely a change that was "contrary to the employee's interests or not to the employee's liking . . . ." (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455 (Akers); Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 510-511.) It has been held, "a mere oral or written criticism of an employee or a transfer into a comparable position does not meet the definition of an adverse employment action under FEHA." (Akers, supra, at p. 1457.)
" '[W]hether or not a plaintiff has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff's prima facie showing, are questions of law for the trial court, not questions of fact for the jury." (Caldwell v. Paramount Unified School District (1995) 41 Cal.App.4th 189, 201 (Caldwell).) In the context of a FEHA claim that no reasonable accommodation was provided, where the undisputed facts demonstrate only that the employer offered reasonable accommodations, the court may determine the issue as a matter of law. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227, fn. 11 (Raine).) However, "reasonableness" of the accommodation will ordinarily remain an issue for the jury. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 (Prilliman).)
In Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225-226 (Hanson), the appellate court acknowledged that the list of reasonable accommodation measures in section 12926, subdivision (n), and California Code of Regulations, title 2, section 7293.9, subdivision (a) is incomplete, and parallel federal law may be consulted for guidance. (Hanson, supra, at pp. 225-226, Prilliman, supra, 53 Cal.App.4th at p. 948; see fn. 1, ante.) When an employer has made some reasonable and effective accommodations available to the employee with a disability, "[t]he employer is not obligated to choose the best accommodation or the accommodation the employee seeks. [Citation.]" Rather, " '[t]he Appendix to the ADA regulations explains that "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the accommodation that is easier for it to provide." [Citation.]' " Again, the reasonableness of an accommodation amounts to a factual question. (Hanson, supra, at p. 228; Prilliman, supra, at p. 954.)
B. Interactive Process
The requirements for engaging in the interactive process to reach a reasonable accommodation to a disability are deemed to be triggered when the employee establishes a prima facie case that accommodation was reasonably known to be requested. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370 (Soldinger).) "[T]hen the employer must establish it initiated good faith efforts to accommodate or no accommodation was possible without producing undue hardship. [Citations.] [¶] Any reasonable accommodation is sufficient to meet an employer's obligations. However, the employer need not adopt the most reasonable accommodation nor must the employer accept the remedy preferred by the employee. [Citation.] The reasonableness of the employer's efforts to accommodate is determined on a case by case basis. What is reasonable for one employee may not be reasonable for another. [Citation.] The obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives. [Citations.] [¶] '[O]nce it is determined that the employer has offered a reasonable accommodation, the employer need not show that each of the employee's proposed accommodations would result in undue hardship.' [Citation.]" (Ibid.; italics added.)
In Prilliman, supra, 53 Cal.App.4th 935, 954, the court discussed the characteristics of the interactive process, and rejected a requirement that a disabled employee "must first come forward and request a specific accommodation before the employer has a duty to investigate such accommodation." Rather, the employee need not use any particular formula to request accommodation. Nevertheless, " '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. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. [Citations.] An employer also has no duty to accommodate an employee who denies she has a disability or denies a need for accommodation.' [Citation.]" (Ibid.) (§ 12940, subd. (m), (n).)
In Hanson, supra, 74 Cal.App.4th 215, 228-229, the court described the interactive process requirements as mainly directory in nature. In discussing section 12940, subdivisions (m) and (n), the court said:
"[T]hey do not set forth statutory requirements. As the Ninth Circuit Court of Appeals has held, '[t]he ADA and its regulations do not . . . create independent liability for the employer for failing to engage in ritualized discussions with the employee to find a reasonable accommodation. [Citations.]' [Citations, including Mengine v. Runyon (3d Cir. 1997) 114 F.3d 415, 420 [both parties have duty to explore accommodations]; Taylor v. Principal Financial Group Inc. (5th Cir. 1996) 229 93 F.3d 155, 165 [employer obligation to participate in interactive process is triggered by employee's request for accommodation].]" (Hanson, supra, at pp. 228-229.)
With these guidelines in mind, we will analyze the evidence in support of the challenged judgment and JNOV ruling. However, before doing so, we address the underlying jury misconduct and evidentiary issues raised.
II
CHALLENGES TO JURY VERDICT/JNOV DENIAL
A. Jury Misconduct
Appellant seeks to demonstrate the trial court abused its discretion in the rulings analyzing the evidence and denying his new trial motion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; People v. Villagren (1980) 106 Cal.App.3d 720, 729.) He argues the court erred in denying him a new trial on the grounds of juror misconduct, and the cumulative effect of the jurors' behaviors deprived him of a fair trial. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 957, disapproved on another point in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
1. Factual Showings; Ruling
Appellant's motion for new trial raised issues of juror misconduct, in that their discussions had included their personal experiences and had been conducted in a problematic way. The motion was supported by the declarations of Jurors Jerry Phuoc Duong, Sandra Kadien, Connie Kempfer, Lee Hawkins (who was excused for family obligations but nevertheless continued to attend trial). These declarations, along with attorney declarations, raised several concerns regarding the jury deliberation process.
First, the motion alleged the foreman, Alex (John) Fuller, and Juror Bruce Long were outspoken during deliberations. Connie Kempfer's declaration stated, "Alex and Bruce took over and did almost all of the talking; leaving other Jurors out."
Second, the motion alleged Juror Long misstated the law. Jerry Phuoc's declaration stated, "Bruce said that he thought it was fair for an Employer to have an Employee work a different shift, or do different work, even with a pay cut." Similarly, Juror Kadien declared that either Juror Long or Foreman Fuller stated to the other jurors "it was the employer's right to have an employee work as the employer wants, even if the employee got less money for it."
Third, two jurors reported that Juror Oleston had said in response to Juror Long's statement about employers making employees work more for the same or less pay that it has happened to her, and "it happens all of the time, and you just have to put up with it."
In opposition to appellant's motion, the University argued he was seeking to inquire into the jurors' thought processes, which was not allowed by Evidence Code section 1150. To oppose the grant of a new trial, the University filed Foreman Fuller's declaration, denying any improper juror behavior and stating "no one was prevented nor precluded from stating their opinion." He further stated he was not biased against the plaintiff, and was even "more sympathetic to those with disabilities because [his] girlfriend is a quadriplegic." Juror Carol Belnap's declaration echoed Foreman Fuller's, stating, "It appeared to me that everyone wanted to hear what other jurors had to say."
Evidence Code section 1150 provides: "(a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined. [¶] (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict."
The University also filed Juror Oleston's declaration, explaining that her comment about doing more work for the same pay, "I do it all the time," was made in jest, and was intended as a reference to a supposed "general trend in the American workplace of increasing the demand on employees without any additional compensation."
At the hearing, the court did not consider the declaration of the defense investigator, John Ballard, which summarized an interview with Juror Long, because it constituted inadmissible hearsay. The court also declined to consider, as hearsay, the declaration by appellant's attorneys, about conversations after trial with a juror who explained the analytical approach taken, and an excused juror who continued to attend trial but believed that the deliberations had not been fair.
Appellant has not explained in the briefs on appeal why those evidentiary rulings against the investigator and attorneys' declarations would represent any abuse of discretion, and we need not consider those declarations in the absence of any effective challenge to the ruling excluding them.
At oral argument, the court discussed the evidence, stating: "It was not certainly an ideal jury deliberation by any means, and no one is suggesting it was. [¶] The issue for the court really is: was it so bad, or does it rise to the level, that it requires a new trial based on grounds of juror misconduct?" The court denied the motion for new trial, finding that the admissible evidence did "not establish that misconduct occurred or is insufficient to permit the Court to conclude that Plaintiff's right to a fair trial was prejudiced or that actual harm resulted from the misconduct." The court stated that the evidence did not support a conclusion that the jury should have reached a different verdict.
2. Applicable Standards
Juror declarations are inadmissible under Evidence Code section 1150 if they reflect on the jurors' thought processes. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 393, p. 450.) However, evidence in the form of juror affidavits may be properly admitted under Evidence Code section 1150, subdivision (a) to show alleged jury misconduct, such as overt acts during jury deliberations that are objectively ascertainable and can be corroborated. Also, when such evidence of misconduct is offered, "jurors' counter affidavits to disprove or explain it are admissible. [Citations.] And in light of the restriction in [Evid. Code, § 1150, subd. (a)] to 'otherwise admissible evidence,' inadmissible hearsay declarations cannot be used to establish juror misconduct. [Citation.]" (7 Witkin, Cal. Procedure, supra, § 392, pp. 445-447.)
" '[J]urors are restricted solely to the determination of factual questions and are bound by the law as given them by the court. They are not allowed either to determine what the law is or what the law should be.' [Citation.]" (In re Stankewitz (1985) 40 Cal.3d 391, 399, italics in original.) Therefore, "[p]resentation to or reception by a jury of new evidence from sources outside the trial evidence constitutes misconduct." (MacDonald v. Southern Pacific Transportation Co. (1999) 71 Cal.App.4th 256, 263 (MacDonald).) However, when jurors weigh the evidence, they " ' "always exercise their judgment in the light of their own general knowledge of the subject in hand, whether instructed to do so or not; and a judgment will not be reversed whether they are or are not so instructed." ' [Citation.]" (English v. Lin (1994) 26 Cal.App.4th 1358, 1365.)
" 'A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice.' [Citation.]" (Tillery v. Richland (1984) 158 Cal.App.3d 957, 970.) " 'Whether prejudice arose from juror misconduct . . . is a mixed question of law and fact subject to an appellate court's independent determination. [Citations.]' [Citation.] A showing of misconduct creates a presumption of prejudice, which in turn 'may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party resulting from the misconduct. [Citations.] Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.' [Citation.]" (MacDonald, supra, 71 Cal.App.4th at p. 265.)
In reviewing the record to determine independently whether the act of jury misconduct, if it occurred, was prejudicial to appellant's right to a fair trial, we consider: (1) the strength of the evidence that misconduct occurred; (2) the nature and seriousness of the misconduct; and (3) the probability that actual prejudice may have ensued. (Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1348.)
3. Analysis
When this record is considered as a whole, it does not support a conclusion that the behavior of the jurors was sufficient to amount to actual juror misconduct. The declaration from Jurors Phuoc and Kempfer stating that jurors were left out of the deliberation process because Foreman Fuller and Juror Long "did most of the talking" is countered by the experience of Juror Belnap, who perceived that everyone had a chance to speak. She also stated in her declaration that "some [jurors] spoke more than others but that, in my opinion, is just a dynamic in any group of individuals."
Additionally, Juror Long's statement that an employer had a right to have an employee work more, even if the employee received less money, does not rise to the level of prejudicial misconduct. This situation is nowhere near the level of error in In re Stankewitz, supra, 40 Cal.3d 391. There, a juror during deliberations stated several times that he was a police officer for over 20 years, that he knew the law, and he then proceeded to incorrectly instruct the jury on the elements of robbery. (Id. at p. 396; see also MacDonald, supra,71 Cal.App.4th at pp. 263-264.) Here, the declarations do not state that Juror Long discussed his employment or even that he knew the law.
Further, the statement by Juror Oleston that she personally experienced working more hours for the same or less pay does not rise to the level of misconduct because jurors inevitably take into the jury room their own experiences. Indeed, " ' "the jury are supposedly men [and women] of different walks of life, avocations, and necessarily views that would be affected by their past experiences and situations. They could hardly arrive at a solution of their differences without discussion of the facts before them, and each man's discussion would necessarily be tinged or affected by his own viewpoint and experience." [Citation.]' [Citation.]" (English v. Lin, supra, 26 Cal.App.4th at p. 1365; see also MacDonald, supra,71 Cal.App.4th at p. 264.)
Although it is undisputed that Juror Long made a statement about an employer's ability to increase an employee's hours without pay and Juror Oleston made a statement that she has worked more for the same pay, there is no indication that any of the jurors deemed such statements to constitute evidence or relied upon them in any fashion in reaching a verdict. Further, we may assume the jury was guided by the instructions that defined evidence and set out the nature of their duties to consider the evidence, and these declarations do not support inferences that misconduct actually occurred.
To contend that the misconduct was prejudicial because the jurors must have deliberately disregarded the court's instructions about the definitions of reasonable accommodation, Anderson unpersuasively relies on inadmissible hearsay statements made by Juror Long. (CACI Nos. 2541, 2542.) Also, any reliance on Juror Oleston's off-hand statement, "I do it all the time," in response to being asked whether she would ever take on more work for the same money, does not demonstrate a disregard of the court's jury instructions. This statement was not directed at appellant and there is no evidence that any statements were made indicating a bias towards him or were made in refusal to follow the instructions.
Moreover, none of the jurors claimed their opinions changed as a result of the statements made by jurors. The trial court explained in denying the motion for new trial, "the Court has weighed the evidence and is not convinced from the entire record that the jury clearly should have reached a different verdict." In light of the entire record, we agree with the trial court that there was insufficient evidence of jury misconduct here to warrant a new trial. These types of behaviors, while not ideal, reflect a jury system made up of human beings who inevitably bring with them their own personalities, idiosyncrasies, and past experiences into the deliberation room. These events did not create a reasonable probability of actual harm to appellant resulting from the alleged misconduct. Even assuming some such misconduct occurred, it would not have been so prejudicial as to justify a new trial.
B. Evidentiary Issues
1. Applicable Standards
"The trial court is 'vested with broad discretion in ruling on the admissibility of evidence.' [Citation.] '[T]he court's ruling will be upset only if there is a clear showing of an abuse of discretion.' [Citation.] ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citation.]' [Citation.]" (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) "This standard of review applies to a trial court's determination of the relevance of evidence, as well as to whether the evidence's probative value is substantially outweighed by its prejudicial effect. [Citations.]" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)
Under Evidence Code section 801, subdivision (a), permissible expert opinion testimony is limited to such an opinion as is: "Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." (Italics added.) In Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 291-292, the court restated this standard to say that expert opinion should be excluded " ' "when 'the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.' " ' [Citations.]" (Ibid.) As explained in Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972-974, an expert's opinion testimony, if otherwise admissible, will not be objectionable where it embraces an ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.) The expert may not, however, take over the function of the factfinder by resolving and directing the resolution of an ultimate issue in a case. (Piscitelli, supra, at p. 974.)
The court's broad discretion in ruling on evidentiary matters extends to foundational matters on which expert testimony is to be based. (Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 (Korsak) ["[T]he courts have the obligation to contain expert testimony within the area of the professed expertise, and to require adequate foundation for the opinion"].) Evidence Code section 801, subdivision (b) provides that an expert witness can testify to an opinion "[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
In Kotla, supra, 115 Cal.App.4th 283, 293, footnote 5, the appellate court acknowledged that a personnel management expert may provide opinion evidence on whether an employer had followed proper personnel standards in discharging an employee. (Ibid.) However, such an expert may not offer opinions about the weight and significance of the evidence, such as by evaluating the probable motive of the employer, since that would not assist the jury in its fact finding process, but instead would create "an unacceptable risk that the jury paid unwarranted deference to the purported expertise when in reality he was in no better position than they were to evaluate the evidence concerning retaliation."(Id. at p. 293.) The court concluded that without some reference by the expert in that case to some professionally recognized "general formula, framework, or theory utilized specially by human resources experts" (to allow the employer's actions in a particular set of circumstances to be objectively evaluated), there was no basis to conclude that the expert could offer any significant assistance to the jury in weighing the evidence about the employer's motive. (Id. at p. 294.)
Nevertheless, in Kotla, supra, 115 Cal.App.4th 283, the court emphasized that it had no intent to create any general rule that would preclude the use of human resources experts in employment cases; rather, it acknowledged that "Expert testimony on predicate issues within the expertise of a human resources expert is clearly permissible. For example, evidence showing (or negating) that an employee's discharge was grossly disproportionate to punishments meted out to similarly situated employees, or that the employer significantly deviated from its ordinary personnel procedures in the aggrieved employee's case, might well be relevant to support (or negate) an inference of retaliation. Opinion testimony on these subjects by a qualified expert on human resources management might well assist the jury in its fact finding." (Id. at p. 294, fn. 6.) Thus, the test should be whether the expert's opinions about the evidence are supported by such a foundation that the opinion evidence offers more substance to the jury than would mere argument or advocacy. (Id. at p. 294.)
2. Factual Showing and Analysis
The issues presented were whether the expert in the field of human resources, Dr. Lewin, could properly testify about employer standards for reasonable accommodation procedures and whether they had been met here, or if that (1) would invade the province of the jury to draw conclusions from the evidence; or (2) lack any reliable foundation in the witness's professional experience and expertise. Dr. Lewin testified at the Evidence Code section 402 hearing about his knowledge of different institutions' policies and procedures relating to reasonable accommodation requirements and the interactive process, all stemming from the ADA standards. Although he had experience in dealing with disability accommodation issues at UCLA, Cornell, and Rutgers, he had not studied such issues at local San Diego colleges, and he mainly offered his opinions about what he would have done under these circumstances, if he had been presented with such an application by appellant.
The University did not contest Dr. Lewin's professional qualifications, but it objected to the proposed testimony on grounds that it would invade the province of the jury, as going to ultimate issues. In excluding the evidence, the trial court noted that the opinions were not based upon any written policy, procedure or standard that would be helpful in measuring the conduct of this particular defendant. The court stated it would be up to the jury to determine whether the conduct of the defendants complied with FEHA requirements, regarding the reasonableness of the accommodation and the interactive process.
Under the standards set forth above, we find the trial court appropriately excluded this opinion evidence. First, the witness mainly sought to testify about his personal beliefs and interpretation of the particular facts of this case as told to him, in light of his background of experience in the field and knowledge of the ADA. Once the jury was instructed about the standards for reasonable accommodation under FEHA, it could evaluate the reasonableness of the University staff's actions as well as the witness could. The jury had to draw conclusions from the evidence regarding the sufficiency of the requests for accommodation and the responses given, and the expert opinion would have duplicated or interfered with that function.
Second, an expert may not base an opinion on an unsystematic or random sampling of information in the particular field, because such an opinion will lack a reliable foundation in fact. (Korsak, supra, 2 Cal.App.4th 1516, 1523.) Here, the expert stated that different universities conduct such investigations differently, and that they are all based upon the requirements of the ADA, such that the standard is to attempt to provide reasonable accommodation when it is needed. That does not provide objective evidence of a standard for evaluating what accommodation is needed for what circumstances.
In any case, the trial court appropriately found that these expert opinions might carry undue weight, even though they did not add objective facts that went beyond argument or advocacy, such as appellant's counsel was able to present. Therefore, the trial court appropriately found that there would be prejudice to the University that outweighed the benefit that the evidence might have provided to the jury. No abuse of discretion has been shown.
C. Substantial Evidence/JNOV
This portion of the appeal presents a substantial evidence challenge to the jury verdict in favor of University and the denial of the JNOV motion, with respect to the claims based on the reasonableness of the accommodations offered in 2001 through the interactive process. Appellant contends that the offers of 50 percent or 75 percent teaching load and salary were not reasonable, in light of what he was requesting, and that it would not have been a hardship to offer more; or in any case, the interactive process was improperly carried out by the University.
1. Standards of Review
To evaluate whether the record supports the verdict, we apply established rules of review:
"An 'appeal from the trial court's denial of the . . . motion for judgment notwithstanding the verdict is a challenge to the sufficiency of the evidence to support the jury's verdict and the trial court's decision. The standard of review is essentially the same as when the trial court has granted the motion.' [Citation.] In ruling on a motion for JNOV, ' "the trial court may not weigh the evidence or judge the credibility of the witnesses . . . . Such order may be granted only when, disregarding conflicting evidence and indulging in every legitimate inference which may be drawn from plaintiff's evidence, the result is no evidence sufficiently substantial to support the verdict." ' " (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1320.)
Normally, the "reasonableness" of a disability accommodation for employment will be an issue for the jury. (Prilliman, supra, 53 Cal.App.4th 935, 954.) However, where the undisputed facts lead only to the conclusion that the employer offered reasonable accommodations, the court may determine the issue as a matter of law. (Raine, supra, 135 Cal.App.4th at p. 1227, fn. 11; Hanson, supra, 74 Cal.App.4th at pp. 225-229 & fn. 11.) Similarly, the reasonableness of the employer's efforts to accommodate a request is determined on a case by case basis, and is evaluated as a factual matter, in light of the principle that "[t]he obligation to search for an acceptable solution is bilateral. Employees also have the obligation to make a good faith effort to explore alternatives." (See Soldinger, supra, 51 Cal.App.4th at p. 370.)
We may assume that since the trial court sent the reasonableness issues to the jury, there was an implied finding that appellant had made enough of a prima facie case of FEHA violations to justify resolution through jury trial. Our analysis is directed at the jury's verdict on the reasonableness of the accommodations offered, on the one hand, and the adequacy of the interactive process, on the other.
2. Analysis
Appellant asserts there is no evidence sufficiently substantial to support the verdict, because (1) the University misinterpreted his 2001 requests for accommodation, and he could have worked full time with some combination of the requested two lecture courses and other service or supervision assignments; (2) the University did not show it would have been a hardship to accommodate him as he requested; (3) University staff did not understand the interactive process or carry it out properly. He further contends that the medical evidence showed that the lack of reasonable accommodation in 2001 caused his worsening physical condition and permanent disability, such that the matter should be returned for trial on damages, with causation established.
Both appellant and the University presented expert medical evidence about his physical condition, as shown by testing and evaluation of medical records, to assess whether he could have performed all required job duties at various relevant times (Dr. Silver for appellant and Dr. Chun for respondent). As will be explained, we have not summarized the evidence on that point because of our conclusions about the extent of the requests appellant made for accommodation, and the nature of the responses by the University.
In opposition, the University argues the record does not support appellant's position that he never requested a part-time schedule, and that it reasonably interpreted his requests to be assigned two lecture courses as an agreement to perform part-time work, which is what was offered. The University takes the position that it therefore offered a reasonable accommodation, no hardship inquiry needed to be made, and the interactive process was adequate, such that the record supports the defense verdict.
To evaluate these arguments, we return to the record showing the sequence of events in the summer and fall of 2001. When appellant originally objected in July of 2001 to the increased workload of four classes, he offered to teach three undergraduate classes, supervise various MBA projects, and obtain workload credits for his research and writing and extra pay for the extra work, as previously allowed by the contract. The response on July 26, 2001 from B. Anderson made a different offer to appellant of two undergraduate lecture courses (SSM 305) and one graduate lecture class (BA 640) (as the other undergraduate course he wanted had already been staffed). Appellant responded on July 29, 2001, by reminding B. Anderson about his previous agreement for overload compensation with his supervisor.
In mid-August 2001, when appellant discussed disability retirement options with Cardoso, he told her it was impossible for him to meet the increase in teaching load that fall term, due to chronic fatigue and complications. He began to fill out the "reasonable accommodation request" form. As submitted on August 20, 2001, that form listed as the essential job functions for which accommodation was being requested, "preparing lessons, teaching, counseling students and conducting research." The portion filled out by the doctor listed appellant's functional limitations from the disability as "difficulty to perform research, prepare lessons, teach and counsel students. Difficult to stand and ambulate." The forms as submitted stated that appellant and his doctor both sought "reduction to 2 teaching courses only for the fall term." Those forms read as a whole do not support any claim that appellant was willing to teach full time at that time, as all areas of teaching were affected.
While the forms were being processed by University staff, some suspicion on their parts evidently developed about whether the extra pay request appellant had made earlier undermined his current claim of disability. B. Anderson then formulated an offer, transmitted by Kessler, the director of human resources, providing a two course schedule (six units), but at 50 percent of the required work load and pay (or 75 percent if unspecified research or service were added, to make nine units). Appellant objected that he needed to remain at full salary. Kessler told him about other options, such as an early retirement with part-time teaching, or other options. Appellant continued to request full-time work, but with a reduced lecture class load.
When appellant changed his request, by telling Kessler on August 23 he would work full time in order to get full pay, the record does not show there was any discussion at that time of any alternative work assignments, such as supervision of student projects, MBA or senior experience teams. The 8 and 10 unit assignments that appellant ultimately worked during the two semesters in 2001-2002 included three lecture classes, but did not document whether any additional alternative assignments were being carried out.
It is not clear in the record when the problems developed in a senior experience team, leading to retaliation arguments. (Pt. III, post.)
When Kessler told appellant he needed a doctor's release to perform full-time work, he obtained one, and Dr. Lovell's written caveat in the August 27 addendum to the disability verification form included a statement that the patient could not afford to work part time and was doing this for financial reasons. However, the thrust of the addendum remained that appellant could perform the essential functions of his job and a full workload without accommodation. When Kessler confirmed to appellant that he would be teaching the three assigned lecture courses for the Fall 2001 semester, she did not mention any alternative work, but reiterated that a reduced workload could be provided, with compensation adjusted accordingly.
The jury was also presented with evidence that while appellant was working full time during 2001-2002, he was also pursuing an outside application for disability benefits, based upon medical evaluations of his total disability as of August 2001. Also, in June 2002, appellant filed forms with the Social Security Administration stating that he was suffering from extreme fatigue and pain and could not perform the essential functions of his job.
Appellant believes this evidence on his requests for accommodation and the responses demonstrates that his requests for two lecture classes were always made with the assumption, or an implied request, that he could also perform alternative work, such as student supervision or research. However, that theory does not account for the facts that his accommodation form and the addendum to it both included information that the state of his health was such that he was also having difficulty in performing research, lesson plans, teaching and counseling. The assignments eventually made were for an average of nine units per semester in 2001-2002, which was considered full time while the union grievance was pending (even though 12 units was the original full-time load required). While this was a demanding load, it had been adjusted to some extent during the process.
From all of this evidence, the jury had a substantial basis to conclude that the accommodations offered were reasonable, because two lecture courses were assigned, with or without extra alternative forms of work, and these were consistent with what he originally requested. When he refused that option, and submitted the addendum to the disability form stating that he was able to work full time, that decision could reasonably have been understood by the University staff, and also the jury, that no accommodation was being requested, or it had been withdrawn. Clearly, the interactive process in this case was less than perfect, because B. Anderson admitted that she did not know at the time what an accommodation was, and there was a serious breakdown in communication about whether alternative work assignments were being offered or would be accepted. However, it is also a fair conclusion from the evidence that appellant's requests were changing and difficult to understand throughout this period, and that he eventually accepted the full-time assignment, and obtained and documented his doctor's permission to do so. There is evidence that he did not take any sick leave days during the Fall 2001 or Spring 2002 semesters, from which the jury could have concluded that the workload ultimately offered was reasonable under all the circumstances.
The jury could also properly evaluate the evidence about the requests and the response in light of the background of the Dean's unilateral change in the workload required of faculty, as of July 2001 (although limiting instructions were given on the collective bargaining issue). There was also background evidence that appellant was seeking disability retirement from outside providers at the same time that he was working full time. Apparently, his doctors assumed he would be retiring as of August 2001, and they were not told differently by appellant. The jury could have concluded from this that appellant's version of the events was not entirely accurate or credible.
Regrettably, this record of the manner in which the interactive process was carried out shows a great deal of lack of communication and understanding between the parties. However, the labeling of the interactive process is not dispositive, but rather the actual activities undertaken by the employer. (Prilliman, supra, 53 Cal.App.4th at pp. 954-955; Raine, supra, 135 Cal.App.4th 1215, 1222 [employee has duty of cooperation to seek accommodation].) On the whole, the trial court had an adequate basis in the evidence to deny the JNOV motion, and substantial evidence supported the verdict on the accommodation issues. Moreover, the jury did not have to resolve any hardship claims on the part of the employer, since that is a matter for defense under the statute, to show that it would be an undue hardship to offer a different accommodation. (§ 12940, subd. (m).)
The entire sequence of events as shown in the record supports the jury's decision that the University was entitled to rely upon the August 2001 representation by appellant that he was able and available to work full time, which undermined his accommodation claims. Appellant failed to show by substantial evidence that his requests for two lecture classes always included, and were somehow understood to contain, an implied request for additional alternative duties to make up a full-time load (as opposed to a third lecture class). Instead, his representations in August 2001 that he was having difficulties with all of the normal duties of teaching were never withdrawn, and could reasonably be understood by University staff as justifying a part-time offer, which was then effectively superseded when he agreed to work full time. The trial court could reasonably conclude, with the jury, that appellant must bear the consequences of that decision.
Finally, the trial court had no basis to make a causation finding that appellant's retirement due to ongoing ill health in 2002 was directly attributable solely or principally to a lack of reasonable accommodation. Instead, the evidence about how the University staff interpreted appellant's various requests and responded to them showed that the requirements of FEHA were met here, on a sufficient basis to support the defense verdict, as the trial court ruled.
III
SUMMARY ADJUDICATION: RETALIATION
A. Standards of Review
We review the summary adjudication ruling on the retaliation claim on a de novo basis. (Spitzer v. The Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1385-1386 (Spitzer).) In doing so, we "apply the same rules and standards that govern a trial court's determination of a motion for summary judgment. [Citation.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1258.) Summary judgment should be granted if "all the papers submitted show that there is no triable issue of material fact and . . . the moving party is entitled to judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) An appellate court must "reassess the legal significance and effect of the papers presented by the parties in connection with the motion. [Citation.]" (Distefano, supra, 85 Cal.App.4th at p. 1259.)
"We accept as true the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff must show ' "specific facts," ' and cannot rely upon the allegations of the pleadings. [Citation.] At the same time, we must bear in mind that, ' "[b]ecause discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant." ' [Citations.]" (Spitzer, supra, 80 Cal.App.4th 1376, 1385-1386; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 234-235 (Brundage).)
B. Respective Showings; Analysis
To make out his prima facie case regarding retaliation, appellant had to show he was subjected to an adverse employment action, or retaliation, because of the disability or protected conduct. (Brundage, supra, 57 Cal.App.4th 228, 236.) The burden then shifted to University to offer a legitimate nondiscriminatory reason for the adverse employment decision. In response, appellant had the burden of proving that the employer's proffered reason was untrue or pretextual. (Caldwell, supra, 41 Cal.App.4th 189, 196-197.)
Much of appellant's showing for his retaliation theory depended on Dean Guseman's determination that he would not assign appellant alternative student supervision work, pending the investigation of the student complaint, but without going through normal student grievance procedures. In the trial court's ruling, it noted that the reasons that the Dean gave for his personal conduct of this type of investigation were legitimate and nondiscriminatory, i.e., scheduling time constraints and a desire not to interfere with the existing staffing, as of the summer of 2002, of current senior experience teams. Also, the alternate work offered to appellant, teaching a marketing class that he had taught before, was characterized by the Dean as "not that big of a deal."
To the extent that the normal procedures were not followed in handling the student complaint (by referring it directly back to appellant), there is authority that an employer's failure to follow internal procedures does not establish a bad purpose or motivation by the managers. (Randle v. City of Aurora (10th Cir. 1995) 69 F.3d 441, 454.) Instead, other reasons could exist for a departure from procedure, other than a pretext for discrimination. The trial court identified one such reason as the existing tension between the administration and the faculty relating to the July 2001 memo regarding class scheduling and faculty workload, such that the faculty member who received the complaint passed it along to the Dean. Also, even though Dean Guseman stated in his deposition that he now thinks he should have discussed the student complaint with plaintiff in July rather than waiting until August, that does not establish a discriminatory motive, but rather only a mistake acknowledged by the Dean.
Appellant further argues that the refusal to reduce his workload in the fall of 2002 must have been a form of retaliation for his November 2001 DFEH complaint. However, the undisputed evidence was that the decision maker at that time, Dean Guseman, had recently joined the faculty (Feb. 2002) and did not know about the earlier DFEH complaint when he was adjusting appellant's Fall 2002 schedule. Appellant cannot show a nexus between the Fall 2002 events and his previous filing of the DFEH claim that would be sufficient to support an inference that the actions in rescheduling his work were a pretext for disability discrimination or retaliation.
In conclusion, appellant did not demonstrate that triable issues of fact remained on his retaliation theory.
DISPOSITION
The judgment and orders, including the summary adjudication and the JNOV orders, are affirmed. Costs on appeal are awarded to University.
WE CONCUR: NARES, J., McINTYRE, J.