Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC310675, Teresa Sanchez-Gordon, Judge.
Appleton, Brady & Magnanimo, Heather Appleton and Rene Judkiewicz for Plaintiff and Appellant.
Law Offices of Ivie, McNeill & Wyatt, Rupert A. Byrdsong and Charlie L. Hill for Defendants and Respondents.
MALLANO, Acting P. J.
Plaintiff brought this action against her employer and a supervisor under the California Fair Employment and Housing Act (FEHA or Act) (Gov. Code, § 12900 et seq.), alleging claims for disability discrimination, retaliation, failure to provide reasonable accommodations, unlawful denial of transfer and employment, and failure to engage in the interactive process to determine reasonable accommodations. (All section references are to the Government Code unless otherwise indicated.)
The action was tried to a jury, which returned a unanimous verdict in favor of defendants.
On appeal, plaintiff contends that (1) the verdict is not supported by substantial evidence, (2) a new trial should have been granted based on newly discovered evidence, and (3) the verdict form was defective. We conclude that (1) substantial evidence supports the verdict, (2) the newly discovered evidence would not have made a difference in the outcome and could have been found through reasonable diligence, and (3) any defect in the verdict form was waived and, in any event, harmless. We therefore affirm.
I
BACKGROUND
“[W]e examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference.” (Katsura v. City of San Buenaventura (2007) 155 Cal.App.4th 104, 107.)
In December 2000, plaintiff Quelin Edwards began working as a custodian for defendant Los Angeles Unified School District (LAUSD), filling in for absent custodians at different schools. In November 2002, she was permanently assigned to Pio Pico Elementary School. There was a middle school at the same location. Edwards worked from 2:00 p.m. to 10:30 p.m.
Edwards’s duties included cleaning classrooms, toilets, the yard, and offices; providing security; changing light bulbs; locking up the school; and sometimes opening the school. She had a written work schedule that indicated a specific time for performing her tasks.
Before Edwards started at Pio Pico, she learned that she had lupus, a disease that causes painful skin lesions and rashes exacerbated by exposure to the sun. Edwards’s doctors advised her to wear a hat and sunblock in the sun.
Until the beginning of July 2003, Edwards did not tell her immediate supervisors she had lupus, nor did she seek an accommodation for the disease. During that month, Edwards’s immediate supervisor, Martin Carelli, the plant manager, asked Edwards why she was not completing her assignments. Edwards told him she had lupus, which created problems for her when working in the sun. A few days later, Edwards asked Carelli for an accommodation to avoid having to work in the sun. A written personnel policy entitled “Changes to Your Schedule” stated, “You may not change your schedule without the authorization of the plant manager.”
Carelli told Edwards he would help her as much as possible and would get back to her “to accommodate her on her problems.” Carelli discussed the issue with Patrick Koll, an area operations supervisor. Koll, in turn, went to Kevin Ralph, a senior human resources representative, for advice.
In July 2003, Ralph checked Edwards’s file and saw a notation “discoid lupus.” He told Koll to impose a sunlight restriction on Edwards’s job and to ask her to provide some medical documentation to support the restriction. Koll forwarded this information to Carelli.
Carelli told Edwards that she was to perform her outdoor duties after the sun went down. She never informed him that she had any problems with this accommodation. He also asked her to provide a doctor’s note. She did so.
Carelli gave Edwards a two-sided “physician statement” and asked her to have it completed. She returned it, and Carelli gave it to the office manager. Shortly thereafter, the office manager told Edwards that the form was not filled out on the backside. Edwards took another physician statement and gave it to her doctor. She arranged to have the completed form faxed to the school. Edwards never learned whether the school received the form.
Carelli testified that, as a result of his oral instructions to Edwards, she had “the right to switch around her tasks so that she could do them whenever she wanted during her shift.” “She could do whatever she wanted when she wanted as long as she got all of the tasks done.” According to Ralph, Edwards was told that, regardless of what was in her written work schedule, she was not to perform her outdoor duties until the sun went down.
On September 10, 2003, Edwards was given a written work schedule, indicating that yard work was to be performed at 2:45 p.m. Edwards interpreted this as a directive to work in the sun notwithstanding Carelli’s instructions. She did not raise the issue with anyone.
In mid-September, Edwards attended a meeting with her supervisors. She mentioned the subject of her disability and asked if “it [had] been worked out.” She was told that the paperwork received by the school “was not helpful.”
In September 2003, Edwards telephoned Ralph and complained that her supervisors had not accommodated her. Ralph contacted Koll, who confirmed that Edwards had been instructed not to work in the sunlight. Koll added that Edwards intended to go out on an illness leave. Ralph told Koll to make sure Edwards’s written work schedule reflected the sun restriction before she returned to work.
On September 16, 2003, in accordance with her doctor’s orders, Edwards commenced a medical leave because her lupus had worsened. Two days later, she wrote to Ralph, saying that the school could expect a completed physician statement soon.
On October 7, 2003, Edwards’s rheumatologist, Dr. Ken Bulpitt, completed the physician statement, and Edwards promptly delivered it to the school. The statement indicated that Edwards was “to avoid sunlight all the time” and that her condition was “lifelong.”
Edwards’s leave of absence lasted around five months. On January 28, 2004, one of her doctors signed a form stating, “In my opinion, this employee will be medically able to perform all of his or her job duties without restrictions or limitations on February 27, 2004.”
On February 17, 2004, Edwards filed this action against the LAUSD, alleging causes of action for (1) failure to provide reasonable accommodations (§ 12940, subd. (m)) and (2) failure to engage in a good faith interactive process to determine reasonable accommodations (§ 12940, subd. (n)). The LAUSD filed an answer within 30 days.
Edwards returned to work in February 2004. She was initially given the wrong work schedule. She then received a second schedule, but it failed to note the sun restriction. Ralph admitted that both schedules were given to Edwards by mistake. Eventually, on March 12, 2004 (and again on March 23), Edwards was given a third and final schedule. It changed the location of her indoor work from the elementary school to the second floor of the middle school, increased the number of classrooms she had to clean, and stated, “All grounds work, bungalow and stair cleaning will be done after sunset.” Edwards was asked to sign the schedule but declined, saying that her attorney had advised her not to sign anything until the attorney had reviewed it. Edwards testified that she “refused to accept” the final schedule as her new schedule.
Soon after Edwards declined to sign the schedule, Koll and another supervisor met with her to determine if she was ready to sign it. Edwards said she had not shown the schedule to anyone. She was asked twice if she would sign it. In response, Edwards stood up and said, “This meeting is over. I’m not talking to you.” She walked out of the room.
Edwards did not consider the schedule to be an effective accommodation. Although the schedule stated that she was to perform her outdoor duties after sunset, Edwards testified that it “was completely dark” outside due to inadequate lighting. Yet she did not bring this issue to anyone’s attention. Instead, she continued to work in the sun.
According to Edwards, in February and March 2004, her supervisors were “spying” on her — “just [to] harass [her].” They would “flip” her time card and put red marks on it, and “let [her] know they’re there, like intimidate me.” She started getting disciplinary notes. The supervisors could see that Edwards was breaking out in blisters and appeared sick.
Ralph heard on two occasions that Edwards had not yet signed her work schedule. He arranged a meeting with Edwards, Koll, and a union representative. They met on March 30, 2004. At the meeting, Edwards said it was acceptable to have her perform her outdoor duties after sunset. Edwards then brought up some new accommodations she wanted. She said she could not stand on her feet for long periods of time, could not walk long distances, and could not go up and down stairs. Ralph told Edwards to obtain medical documentation to support the additional accommodations.
The same day as the meeting, someone inspected Edwards’s work areas to determine if they were clean. A few weeks later, Edwards received a “work inspection report,” dated March 30, 2004, criticizing her for (1) not completing all of her duties (e.g., dusting, mopping), (2) failing to turn off the lights and to lock the doors and windows, and (3) not checking in and out of the main office on a daily basis. Edwards considered this a “set up” because the meeting prevented her from completing her work that day.
On or about April 1, 2004, Edwards submitted a form entitled “Documentation of Medical Impairment,” completed by Dr. Bulpitt, stating: “[N]o stairs. . . . [P]atient has photosensitivity. Limit sun exposure to less than 15 minutes at a time. Total less than one hour per day. . . . [D]ue to arthritis pain, can’t walk distances greater than ten to 15 minutes at a time. Also due to pain, requires longer to cover the distance.”
By letter dated April 12, 2004, Ralph asked Edwards to have her doctor complete a three-page “Annotated Class Description” (ACD), which was enclosed with the letter. He asked that it be returned within 15 days. The purpose of the ACD was to obtain more detail about the work restrictions that would accommodate Edwards’s additional health problems (e.g., standing and walking). Edwards took the ACD to her doctor.
Before the 15-day period expired, Ralph was told by Edwards’s supervisors that she was not performing her job and that she had said she could not perform certain tasks. Based on that information and the new restrictions Edwards had requested at the March 30 meeting, Ralph decided that, for safety reasons, it was best to place Edwards on an illness leave with pay until the LAUSD could determine exactly what her work restrictions were and how to implement them. As he explained at trial, a building and grounds worker lifts heavy machinery, comes in close contact with various chemicals, has to strip floors, and performs “all kinds of things” that may place her in “physical jeopardy” if she is “not entirely able to perform the tasks.”
On April 20, 2004, Edwards requested a job transfer, submitting her request directly to LAUSD headquarters. She never received a response. Edwards testified that she sought the job transfer because the “harassment” at Pio Pico aggravated her lupus and diabetes.
On April 22, 2004, Koll and another supervisor approached Edwards and asked her if she had the completed ACD. (The deadline in Ralph’s letter was April 27.) She said “no.” They told her that they had been directed to “send her off the job so she didn’t endanger her health.” Edwards accused them of “terminating” her. Koll said, “no” — she was being placed on paid “illness time” for her safety and health in the event “there are further restrictions we don’t know about.” They took her keys and “walked her” off the property. On the way, Edwards grabbed a walkie-talkie from a security guard and used it to call for help. She was told to return it. Edwards testified that she was treated “like a criminal.” She never returned to work with the LAUSD.
Four days after being escorted off campus, Edwards was hospitalized by a psychiatrist for depression with suicidal ideation. The psychiatrist continued to treat her after she left the inpatient facility. At trial, the psychiatrist testified that, when Edwards was admitted to the hospital, he tried to determine “if there was some recent event in [her] life that might have set off the depression.” “[T]he best [he] could come up with was . . . her having . . . a birthday” the day before.
On April 28, 2004, Edwards applied to the LAUSD for a medical leave of absence. It was approved. The supporting doctor’s note said Edwards would be able to return to work on May 26, 2004, and she would “be medically able to perform all of . . . her job duties without restrictions.”
On August 16, 2004, Edwards’s psychiatrist wrote a note to the LAUSD, stating: “Patient should be assigned to a different area/campus. Working in present area would be too stressful.” The note continued: “[Patient is] approved to return to work without job related restrictions effective 8-13-04.” (Italics added.) Ralph does not recall seeing this note at the time.
Meanwhile, Ralph was waiting for the completed ACD to be returned by Dr. Bulpitt so the LAUSD could implement the additional work restrictions. One page of the ACD was returned on May 7, 2004. On August 17, 2004, Ralph wrote to Edwards, discussing her status and the importance of returning the entire ACD.
In September 2004, Edwards sought employment at Dorsey High School, which had an opening. She testified she did not get the job because Ralph called Dorsey’s principal and told him she had “attendance issues.”
On September 15, 2004, the LAUSD authorized Edwards’s attorney, Heather Appleton, to substitute a more “user-friendly” form for the ACD. On November 9, 2004, Dr. Bulpitt completed the new form. Ralph received it on November 15. The form contained several restrictions relating to “frequent breaks, avoid sun exposure, no heavy lifting, no exposure to solvents, volatiles, no stairs, [and] limit walking distance.” Dr. Bulpitt said Edwards could return to work in May 2004.
Ralph asked a supervisor to conduct a “time and motion survey,” using the information from Dr. Bulpitt, to determine whether “a workplace accommodation could be made that incorporated all of those restrictions.” On November 24, 2004, the supervisor completed the survey, concluding that Edwards’s duties could be performed during an eight-hour day in accordance with Dr. Bulpitt’s advice.
By letter dated December 1, 2004, Ralph informed Edwards that “we have determined that a reasonable accommodation is available for the restrictions identified by Dr. Bulpitt.” The letter asked Edwards to contact Ralph by the close of business on Friday, December 17, 2004, to indicate whether she would accept the work schedule. Because Ralph did not receive a response by that date, he sent a similar letter to Edwards on December 21, 2004. The second letter also mentioned that if Edwards did not return to work and exhausted her benefits, she could be “separated from District service. [¶] If separated, a return to work within 39 months may be possible under the terms of Personnel Commission rules.”
On December 22, 2004, Appleton responded to Ralph’s letter from the day before, indicating that “the proposed new assignment . . . does not take into account the restrictions prescribed by Mrs. Edwards’ psychiatrist . . . [that Edwards] be assigned to a different area/campus . . . [due to stress].” Appleton enclosed a copy of the psychiatrist’s note, dated August 13, 2004.
Ralph responded by letter to Appleton, asking Edwards to reconsider accepting the offer of accommodation. Edwards declined the offer again.
On January 21, 2005, Appleton wrote to Ralph, letting him know that Edwards was obtaining a more specific note from the psychiatrist. Appleton expected to receive the note within a week and would forward it to him.
In March 2005, Ralph received the psychiatrist’s note, which stated Edwards was “having a lot of stress in her present location and a transfer to another school will benefit her present condition.”
Ralph concluded that the note was not sufficiently specific to make an accommodation. On May 27, 2005, he wrote Appleton to that effect. Ralph stated that “no environment is stress free.” He continued: “The [psychiatrist’s] note fails to indicate any specific findings or justifications for the requested accommodation (transfer) . . ., other than stating that [Edwards] was having a lot of stress. This does not meet even rudimentary criteria for consideration of an accommodation. There’s no statement of how any transfer will alleviate the stress Mrs. Edwards is reportedly suffering or how that stress so adversely affects her ability to perform the essential functions of her job . . . . [¶] . . . [T]here is no correlation between Mrs. Edwards’ susceptibility to sunlight exposure, transfer to a new location, and the recently revealed stress level Mrs. Edwards has indicated. [¶] The aforementioned information is necessary so that any further consideration [of an accommodation] is made with a conscious effort to, if possible, avoid duplication of the circumstances that have occasioned the apparent exacerbation of Mrs. Edwards’ condition.”
The LAUSD never received a more detailed psychiatric note in response to Ralph’s letter. At trial, Ralph was asked, “If Miss Edwards had provided a note from her psychiatrist with some specifics about why she should be transferred, would you have attempted to facilitate that?” He answered, “Yes.” Ralph was also asked about his efforts to help Edwards. He said, “We tried very hard to get Miss Edwards working again after her leaves. We worked hard to get her back to work through May of 2005. And we just couldn’t.”
Meanwhile, in March 2005, Edwards had filed a second amended complaint (complaint), adding Ralph as a defendant. It also differed from the original complaint in that several causes of action had been added. The LAUSD and Ralph (collectively defendants or LAUSD) demurred to the complaint. The trial court sustained the demurrer without leave to amend as to three of the causes of action, leaving five causes of action for trial: (1) disability discrimination, (2) failure to provide reasonable accommodations, (3) failure to engage in the interactive process, (4) retaliation, and (5) unlawful denial of transfer and employment.
On October 19, 2005, the LAUSD notified Edwards by letter that she had been absent without an approved leave since August 13, 2004. On October 28, 2005, Appleton responded to the letter, saying that Edwards “had been and remained ready to return to work.”
On December 2, 2005, the LAUSD informed Edwards by letter that a recommendation had been made to dismiss her from employment due to abandonment of her position. Appleton sent a letter in reply on December 5, 2005, advising that Edwards “had been and remained ready to return to work.”
In June 2006, the case was tried to a jury, using a special verdict form. The jury returned a unanimous verdict in favor of defendants. On the disability discrimination claim, the jury found that Edwards’s medical conditions were not a motivating reason for “the LAUSD’s decision to not allow her to work or transfer to another campus.” On the reasonable accommodation claim, the jury answered “no” to the question, “Did LAUSD fail to provide reasonable accommodation for Ms. Edwards’ disabilities?” On the interactive process claim, the jury determined that the LAUSD engaged in the interactive process in good faith regarding Edwards’s work restrictions. On the retaliation claim, the jury indicated that the LAUSD had not subjected Edwards to an “adverse employment action.” The purported fifth cause of action, for denial of transfer and employment, did not appear on the verdict form.
On July 13, 2006, the trial court entered judgment. An amended notice of entry of judgment was served on July 27, 2006.
Edwards filed (1) a motion for judgment or partial judgment notwithstanding the verdict, (2) a motion for a new trial, and (3) a motion to set aside or partially set aside the verdict. The new trial motion asserted two main arguments. First, Edwards did not know until after the jury verdict that she had been “separated from service.” This, she argued, was newly discovered evidence that would have constituted an adverse employment action in support of her retaliation claim. Second, the verdict form omitted her cause of action for denial of transfer and employment, necessitating a trial on that claim. Defendants filed an opposition to each motion. By order dated September 14, 2006, all of the motions were denied.
Edwards appeals.
II
DISCUSSION
In this court, Edwards contends that substantial evidence does not support the verdict on the claims for disability discrimination, retaliation, and the failure to engage in the interactive process. Our review of the record indicates otherwise.
Edwards further contends that a new trial should be granted because she did not know that she had been “separated from service” until after the verdict was returned. As she sees it, this constitutes newly discovered evidence of an “adverse employment action” that would support her retaliation claim. But Edwards’s separation was required under state and local law because she had exhausted her leave benefits. Thus, it was not retaliatory. In addition, letters sent to Edwards in 2004 and 2005 — long before trial — put Edwards on notice that her job status was questionable. She did nothing to determine her status, although she could have easily done so. Consequently, Edwards could have discovered the new evidence with reasonable diligence.
Finally, the verdict form’s omission of Edwards’s cause of action for denial of transfer and employment was the result of waiver and, alternatively, was harmless. Edwards had two trial attorneys, one of whom assisted in drafting the verdict form and represented to the trial court on the record that it was acceptable to the parties. In addition, the omitted cause of action simply repeated the same theory of liability as the disability discrimination claim, making it duplicative and its omission harmless.
A. Sufficiency of the Evidence
We use the substantial evidence test to determine the validity of the verdict. Under that test, “‘[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court’s findings.” (Estate of Leslie (1984) 37 Cal.3d 186, 201.) “‘[T]he focus is on the quality, not the quantity of the evidence. Very little solid evidence may be “substantial,” while a lot of extremely weak evidence might be “insubstantial.”’” (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 589.) The testimony of a single witness, including a party, may be sufficient. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)
“We accept all evidence favorable to the prevailing party as true and discard contrary evidence. We do not reweigh the evidence or reconsider credibility determinations.” (Katsura v. City of San Buenaventura, supra, 155 Cal.App.4th at p. 107, italics added.) It is within the exclusive province of the trier of fact to determine credibility. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 823.) “[T]he testimony of a witness whom the trier of fact believes, whether contradicted or uncontradicted, is substantial evidence, and we must defer to the trial court’s determination that these witnesses were credible.” (Estate of Odian (2006) 145 Cal.App.4th 152, 168.) By the same token, we defer to the trier of fact’s determination that a witness was not credible. (In re Hardy (2007) 41 Cal.4th 977, 1010.)
Both the FEHA and federal statutes prohibit disability discrimination as well as retaliation against an employee for engaging in protected activity. (See § 12940, subds. (a), (h); 42 U.S.C. §§ 12112, 12203(a).) “Lawsuits claiming [discriminatory and] retaliatory employment [action] in violation of [the FEHA] are analogous to federal . . . claims . . ., and are evaluated under federal law interpreting [federal statutes.]” (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 475–476; accord, Hon v. Marshall (1997) 53 Cal.App.4th 470, 475; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 948.)
In reviewing a jury verdict in a discrimination or retaliation case for substantial evidence, we decide whether sufficient evidence supports the jury’s ultimate determination. (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201–205; Polanco v. City of Austin, Tex. (5th Cir. 1996) 78 F.3d 968, 976–980; Gomez v. Allegheny Health Services, Inc. (3d Cir. 1995) 71 F.3d 1079, 1084; U.S.E.E.O.C. v. Century Broadcasting Corp. (7th Cir. 1992) 957 F.2d 1446, 1450, 1455; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1002–1005; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 694–695.)
We do not apply the three-part burden-shifting test originally developed in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 at pages 802–805 [93 S.Ct. 1817] (McDonnell Douglas). Rather, that test is applied in reviewing summary judgment motions. (See Caldwell v. Paramount Unified School Dist., supra, 41 Cal.App.4th at pp. 201–205; Woodhouse v. Magnolia Hosp. (5th Cir. 1996) 92 F.3d 248, 252–253; Polanco v. City of Austin, Tex., supra, 78 F.3d at pp. 976–978; Gomez v. Allegheny Health Services, Inc., supra, 71 F.3d at p. 1084; U.S.E.E.O.C. v. Century Broadcasting Corp., supra, 957 F.2d at p. 1455.) More specifically, under McDonnell Douglas: “[T]he plaintiff bears the initial burden of establishing a prima facie case of discrimination [or retaliation]. The employer then must offer a legitimate nondiscriminatory [or nonretaliatory] reason for the adverse employment decision. Finally, the plaintiff bears the burden of proving the employer’s proffered reason was pretextual.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)
B. Discrimination and Retaliation
The FEHA does “not guarantee employees ‘a stress-free working environment.’” (Wehunt v. R.W. Page Corp. (M.D.Ga. 2004) 352 F.Supp.2d 1342, 1354.) “[The Act] does not take away an employer’s right to interpret its rules as it chooses, and to make determinations as it sees fit under those rules. ‘[The FEHA] addresses discrimination [and retaliation].’ . . . ‘[It] is not a shield against harsh treatment at the workplace.’ . . . Nor does the statute require the employer to have good cause for its decisions. The employer may [treat] an employee [unfairly or harshly] for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory] reason. . . . ‘While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination [or retaliation]. The employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.’” (Nix v. WLCY Radio/Rahall Communications (11th Cir. 1984) 738 F.2d 1181, 1187, citations & italics omitted; see Adamson v. Multi Community Diversified Services (10th Cir. 2008) 514 F.3d 1136, 1153; McCollum v. Bolger (11th Cir. 1986) 794 F.2d 602, 610.)
1. Plaintiff’s Discrimination Claim
Under the FEHA, it is an unlawful employment practice “[f]or an employer, because of the . . . physical disability, mental disability, [or] medical condition . . . of any person . . . 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.” (§ 12940, subd. (a).)
Edwards challenges the discrimination verdict on one basis: Defendants did not meet their burden of proving the health and safety defense in connection with placing her on illness leave on April 22, 2004 — the day she was walked off campus. That defense states: “[The FEHA] does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (§ 12940, subd. (a)(1), italics added.) An employer must prove this defense by a preponderance of the evidence. (See E.E.O.C. v. United Parcel Service, Inc. (9th Cir. 2005) 424 F.3d 1060, 1074 [construing FEHA].)
There are two problems with Edwards’s contention. First, we review the jury’s resolution of an affirmative defense, and the jury was not instructed on this one. “If [Edwards] was not satisfied with the instruction on this point, it was incumbent upon [her] to request more complete, appropriate instructions of [her] own. . . . ‘In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.’” (Merlo v. Standard Life & Acc. Ins. Co. (1976) 59 Cal.App.3d 5, 13, citations omitted; accord, Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760.) Edwards does not discuss how the jury instructions were selected — what was requested, objected to, or refused — so we presume the trial court acted properly in that respect. (See Moreno Mut. Irr. Co. v. Beaumont Irr. Dist. (1949) 94 Cal.App.2d 766, 780; In re Marriage of Garcia (2003) 111 Cal.App.4th 140, 148; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.)
Second, the health and safety defense was not applicable regardless of how the evidence was viewed at the time of trial. If Edwards did request an instruction on that defense (see CACI No. 2544), the trial court properly refused to give it. The health and safety defense applies if an employer refuses to hire an applicant or discharges an employee because the person’s disability poses a threat to the health or safety of that person or others. Defendants did not refuse to hire or discharge Edwards. Rather, Edwards was sent home on paid illness leave because she had raised new accommodation issues at the March 30, 2004 meeting, she was not performing her job, and she had said she could not perform certain tasks. The leave of absence was intended to last only until Edwards’s doctor submitted supplemental medical documentation to assist the LAUSD in implementing further work restrictions.
2. Plaintiff’s Retaliation Claim
It is unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (§ 12940, subd. (h).)
Edwards is correct that she engaged in protected activities: requesting accommodation, taking leaves of absence, complaining that she was not being accommodated, and filing this suit. But that is not enough. The verdict form required the jury to determine whether Edwards had been subjected to an “adverse employment action.” The jury found that defendants had not engaged in such conduct.
As our Supreme Court has explained: “[I]n order to maintain an action under the antiretaliation provision of [the FEHA], an employee must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment . . . .” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051 (Yanowitz), italics added.) “This term does not appear in the language of the FEHA . . ., but has become a familiar shorthand expression referring to the kind, nature, or degree of adverse action against an employee that will support a cause of action under a relevant provision of an [antiretaliation] statute. . . . In the present case, the issue before us is the appropriate standard for determining whether an employee has been subjected to an adverse employment action for purposes of a retaliation claim under the FEHA.” (Yanowitz, at p. 1049.)
The high court continued: “Appropriately viewed, [the antiretaliation] provision [of the FEHA] protects an employee against unlawful [retaliation] with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career. Although a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of [the FEHA], the phrase ‘terms, conditions, or privileges’ of employment must be interpreted liberally and with a reasonable appreciation of the realities of the workplace in order to afford employees the appropriate and generous protection against employment discrimination that the FEHA was intended to provide.
“[T]he determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion falls within the reach of the [antiretaliation] provisions of [the FEHA].” (Yanowitz, supra, 36 Cal.4th at pp. 1053–1055, fn. omitted, italics added.)
Here, the verdict form asked the jury if Edwards had been subjected to any “adverse employment action.” But the jury instructions did not use that term or define it; the instructions repeatedly used the word “harm.” As made clear in Yanowitz — which was decided about nine months before the trial — courts across the country are divided over the meaning of “adverse employment action.” Some apply a stringent test, equating the term with “ultimate” employment decisions such as demotion or discharge. (Yanowitz, supra, 36 Cal.4th at p. 1051, fn. 10.) At the other extreme, courts interpret it to mean any conduct likely to deter an employee from engaging in protected activity. (Ibid.) Still others use a case-by-case approach, taking all of the circumstances into account but rejecting any requirement that the employer’s action materially affect the employee’s terms and conditions of employment. (Ibid.) Finally, the remaining courts have adopted the materiality standard, which recognizes a retaliation claim only if the employer’s conduct materially affects the employee’s terms and conditions of employment. (Id. at p.1052, fn. 10.) Yanowitz adopted the last standard.
On appeal, Edwards discusses the meaning of “adverse employment action, ” citing Yanowitz, and argues that the LAUSD adversely and materially affected the terms and conditions of her employment. But again, the jury was not instructed on any of this. We have no idea how it defined “adverse employment action.” If the jury used the most stringent test, it had no trouble finding that Edwards had not been discharged or demoted. In short, by not defining this “shorthand expression” in the jury instructions, Edwards waived her substantial evidence challenge on the retaliation claim. (See Moreno Mut. Irr. Co. v. Beaumont Irr. Dist., supra, 94 Cal.App.2d at p. 780; In re Marriage of Garcia, supra, 111 Cal.App.4th at p. 148; Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 712.)
Yet, notwithstanding the inadequacy of the jury instructions, we do not wish to leave the impression that the LAUSD should prevail on this cause of action just because of an instructional error. Assuming for the sake of argument that the jury adopted the correct definition of “adverse employment action,” substantial evidence still supports the verdict.
Edwards’s attack on the retaliation claim rests in part on whether the LAUSD had a retaliatory motive for its actions. But the jury never reached that question, having decided at the outset that no adverse employment action occurred. Nevertheless, we note that “[t]he central problem in the litigation of civil rights claims is the proof of intent. An employer’s action may be the result of a sensible and innocent motive — or an invidious one; everything depends on finding out what that motive really was, and that task is often a difficult one.” (O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 574.) “Because of the complexity of the human mind, determining why a person has acted in a given situation is extremely difficult . . . . Not infrequently, motives for certain actions remain a mystery, even to the actor.” (In re M.S. (1995) 10 Cal.4th 698, 730.)
As stated, we interpret the evidence to support the verdict, discarding contrary evidence. (See Katsura v. City of San Buenaventura, supra, 155 Cal.App.4th at p. 107.) We further note that this trial depended heavily on exhibits. Yet Edwards’s opening brief, which refers to numerous documents, does not identify which ones were exhibits, and she lodged only three exhibits with this court. The reporter’s transcript provides only snippets from the documents, sometimes from both sides. We construe the documents favorably to defendants where the evidence or inferences are in conflict. Because Edwards had the obligation to provide us with all the exhibits (see Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865), she cannot complain that we have interpreted the documents too favorably to the other side.
With respect to the retaliation claim, the record supports the jury’s determination that there was no adverse employment action under any definition of that term. When Edwards first asked for an accommodation in July 2003, she promptly got an effective job modification before she submitted any supporting medical documentation. Per Ralph’s directive, Carelli instructed Edwards to do her outdoor work after sundown. Koll later confirmed that Carelli had so instructed Edwards. Everyone but Edwards understood that Carelli’s oral instructions trumped her written work schedule. Perhaps Edwards decided she could not work outside after sundown because it was too dark and — contrary to her duty to engage in an interactive process — declined to tell anyone about the problem.
Edwards commenced a leave in September 2003 and returned in February 2004. Upon returning, her first two written work schedules contained admitted mistakes; they did not contain the sun restriction. The third one did. Nevertheless, Edwards declined to sign it and refused to follow it — so much for her argument that Carelli’s orally imposed sun restriction in July 2003 had to be accompanied by a written change. Once the restriction was put in writing, Edwards ignored it.
Koll and another supervisor met with Edwards to ask her if she was going to sign the new schedule. Rather than answer the question, Edwards left the meeting, erroneously believing that her “Weingarten” rights permitted her to walk out on her supervisors because a union representative was not present. (See NLRB v. Weingarten, Inc. (1975) 420 U.S. 251, 257–262 [95 S.Ct. 959] [under federal law, represented employee has right to presence of union representative at investigatory interview if employee reasonably believes she faces discipline; right does not apply to employee’s receipt of instructions from employer].) As established through testimony at trial, however, even if Edwards had a right not to answer any questions, she was obligated to remain seated until the supervisors decided to end the meeting.
Eventually, Ralph set up a meeting with Koll, Edwards, and a union representative for March 30, 2004. Edwards said the sun restriction — limiting outdoor work until after sunset (the same restriction imposed by Carelli in July 2003) — was acceptable. She said nothing about inadequate lighting. But she did go on to request additional, new accommodations, saying she had difficulty standing on her feet for long periods of time, could not walk long distances, and could not walk up and down stairs. Ralph asked Edwards to provide medical documentation to support the new restrictions. He did not receive the requested information until November 15, 2004.
By then, several significant events had occurred. For one thing, Edwards had not returned the ACD from Dr. Bulpitt. In addition, her supervisors had told Ralph (1) she was not performing her job, and (2) she had said she could not perform certain tasks. The supervisors could also see that Edwards’s lupus was getting worse. Based on that information, Ralph decided to place Edwards on a paid illness leave until the LAUSD could determine what accommodations she needed. He was motivated by a concern for her health and safety. The LAUSD approved a medical leave for Edwards through August 13, 2004 — the day her doctor said she could return to work and also the day she would exhaust her benefits.
In April 2004, Edwards submitted a request at LAUSD headquarters for a job transfer, explaining at trial that the harassment at Pio Pico had aggravated her lupus and her diabetes. Yet she never informed anyone that she had diabetes or that it was interfering with her job duties.
Edwards received a “work inspection report” criticizing her work performance. She complains that the inspection was unfairly conducted on March 30, 2004 — the day of her meeting with Ralph, Koll, and the union representative. But the comments on the report indicate the evaluation was based on Edwards’s performance over time, not just one day. And we cannot say the criticism was unwarranted.
On August 17, 2004, Ralph wrote to Edwards, discussing her status and the importance of returning the medical form from Dr. Bulpitt.
In September 2004, Edwards applied for a job at Dorsey High School. She did not get the job, she contends, because Ralph told the principal at Dorsey that she had attendance problems. But absenteeism was an issue. A disabled, accommodated employee is not excused from appearing at work. (See Lochridge v. City of Winston-Salem (M.D. N.C. 2005) 388 F.Supp.2d 618, 627–628; Bailey v. Georgia-Pacific Corp. (D.Me. 2001) 176 F.Supp.2d 3, 7–8, affd. (1st Cir. 2002) 306 F.3d 1162.)
After Ralph received the medical information from Dr. Bulpitt in November 2004, the LAUSD performed a “time and motion survey,” which indicated that Edwards’s disabilities could be accommodated in an eight-hour day.
On December 1, and December 21, 2004, Ralph sent letters to Edwards stating that the LAUSD would be able to accommodate her disabilities and asked that she respond to the offer to return to work.
On December 22, 2004, Appleton responded to Ralph’s letter of the day before, saying that the proposed accommodations did not take into account the psychiatrist’s August 13, 2004 recommendation that Edwards be assigned elsewhere due to stress. In reply, Ralph asked Edwards to reconsider the offer to return to work with the accommodations recommended by Dr. Bulpitt. She rejected the offer.
Appleton provided Ralph with a supplemental note from the psychiatrist which said little more than the first one — Edwards should be transferred to another school because she was having a lot of stress in her present location. On May 27, 2005, Ralph wrote to Appleton, stating that the psychiatrist’s note was too vague to be of any help. The note did not identify what was causing Edwards’s stress, so the LAUSD had no way of implementing appropriate accommodations. Ralph requested more detailed information. It never came. Edwards opted to go to trial.
In sum, whether viewed separately or together, the LAUSD’s actions did not adversely and materially affect Edwards’s job performance or her opportunity for advancement. On the contrary, defendants worked continuously to help Edwards improve her job performance. Consequently, the verdict on the retaliation claim is supported by substantial evidence.
C. Plaintiff’s Interactive Process Claim
Edwards does not challenge the verdict on the claim for failure to accommodate but argues that substantial evidence does not support the verdict on the claim for failure to engage in the interactive process. The two causes of action are similar, and we therefore set forth the law governing both.
The FEHA makes it an unlawful practice “[f]or an employer . . . to 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 or mental disability or known medical condition.” (§ 12940, subd. (n).)
“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. . . . Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. . . . While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, citations omitted.)
“An employer’s failure to provide reasonable accommodation is a violation of the [Act] even in the absence of an adverse employment action.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442; accord, Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 [proof of an adverse employment action is irrelevant to a claim for failure to accommodate].) The same can be said for a failure to engage in the interactive process.
“Generally, ‘“[t]he employee bears the burden of giving the employer notice of the disability. . . . This notice then triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations. . . . [¶] . . . The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. . . . Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employe[e]’s capabilities and available positions.” . . .’ . . .
“FEHA does not obligate an employer to choose the best accommodation or the specific accommodation a disabled employee or applicant seeks. . . . It requires only that the accommodation chosen be ‘reasonable.’ . . . Although FEHA does not define what constitutes ‘reasonable accommodation’ in every instance, examples provided in the statute itself and the regulations governing its implementation include job restructuring, part-time or modified work schedules or ‘reassignment to a vacant position.’ (§ 12926, subd. (n)(2); Cal. Code Regs., tit. 2, § 7293.9 . . . .)” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222–1223, citations omitted.)
“The law and its regulations make clear that the term ‘reasonable accommodation’ is to be interpreted flexibly. . . . [They] clearly contemplate not only that employers remove obstacles that are in the way of the progress of the disabled, but that they actively re-structure their way of doing business in order to accommodate the needs of their disabled employees.” (Sargent v. Litton Systems, Inc. (N.D.Cal. 1994) 841 F.Supp. 956, 961.)
“‘Holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future.’” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 244.)
“‘[T]he interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ . . . An employee cannot demand clairvoyance of his employer. . . . ‘“[T]he 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.”’ . . . ‘It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’ . . . Plaintiff therefore was obliged ‘to tender a specific request for a necessary accommodation.’” (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443, citations omitted.)
“Ordinarily, an employee has no right to withdraw himself from the process and force the employer to engage in the interactive process through the employee’s attorney. The kind of information designed to be elicited by the interactive process (job skills and interests, etc.) is personal to the individual employee. Requiring the employer to use the employee’s attorney as a conduit for this personal information would slow the process unnecessarily.” (Claudio v. Regents of University of California, supra, 134 Cal.App.4th at p. 247.)
The jury in this case was instructed in accordance with the foregoing principles. It concluded that the LAUSD engaged in the interactive process with Edwards in good faith regarding her work restrictions. On appeal, Edwards focuses on Ralph’s decision to have her escorted off campus on April 22, 2004, and to place her on paid illness leave until Dr. Bulpitt provided medical documentation to support the new accommodations she requested at the March 30, 2004 meeting. According to Edwards, her involuntary leave signified a breakdown in the interactive process. We agree, but defendants are not to blame for it.
Before the March 30, 2004 meeting, the LAUSD knew that Edwards wanted an accommodation for lupus. Her request had been properly resolved through the sun restriction. Then, from out of nowhere, on March 30, Edwards announced that she had problems standing, walking, and using stairs — unsupported by any medical records or documentation. The LAUSD had a right to obtain medical information before attempting to accommodate those previously unmentioned and unseen disabilities. An employer does not have to accept an employee’s word that she is disabled or needs accommodation. (See, e.g., Kennedy v. Superior Printing Co. (6th Cir. 2000) 215 F.3d 650, 656; Tyler v. Ispat Inland, Inc. (7th Cir. 2001) 245 F.3d 969, 974 & fn. 1; Burns v. Snow (10th Cir. 2005) 130 Fed.Appx. 973, 977, 979, 982–983; Timmons v. General Motors Corp. North America (N.D.Ill. 2005) 390 F.Supp.2d 739, 749–751, affd. (7th Cir. 2006) 469 F.3d 1122; Brettler v. Purdue University (N.D.Ind. 2006) 408 F.Supp.2d 640, 647 & fn. 3, 664–665 & fn. 13; Abdo v. University of Vermont (D.Vt. 2003) 263 F.Supp.2d 772, 777–778; Cameron v. Navistar Intern. Transp. Corp. (N.D.Ill. 1998) 39 F.Supp.2d 1040, 1046 & fns. 5–7.)
Edwards did not “‘present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.’” (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443.) Further, she never mentioned that she had diabetes or that it was interfering with her job duties. But “‘“[t]he employee bears the burden of giving the employer notice of the disability.”’” (Raine v. City of Burbank, supra, 135 Cal.App.4th at p. 1222.) And “‘[t]he interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ . . . An employee cannot demand clairvoyance of his employer.’” (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443.)
While waiting for Dr. Bulpitt’s supplemental information — which Ralph received after seven and one-half months — Edwards’s job performance deteriorated, she told her supervisors she could no longer perform certain tasks, and the lupus took a visible toll on her appearance and health. Ralph decided to place Edwards on a paid illness leave until, after hearing back from Dr. Bulpitt, the LAUSD could implement additional accommodations. Ralph was concerned for Edwards’s safety and health.
While this course of conduct may have slowed the interactive process, it did not bring the process to an end. Within a couple of weeks of receiving Dr. Bulpitt’s supplemental information, the LAUSD offered Edwards a position that implemented his recommended restrictions. Edwards rejected it, insisting that the LAUSD accommodate the stress mentioned in the overly vague note from her psychiatrist. Ralph asked for a more detailed explanation of the cause of Edwards’s stress. He never got it. Edwards brought the interactive process to a halt.
In Ralph’s words, “We tried very hard to get Miss Edwards working again after her leaves. We worked hard to get her back to work through May of 2005. And we just couldn’t.” The jury believed him.
Thus, substantial evidence supports the jury’s determination that Edwards’s claim for failure to engage in the interactive process lacked merit.
D. Newly Discovered Evidence
Edwards maintains that she is entitled to a new trial on the ground that she did not know until after the verdict that she had been “separated from service” and placed on a reemployment list for 39 months. Under this line of argument, the jury would have been more likely to return a verdict in Edwards’s favor on the retaliation claim if it had known of the separation.
A new trial may be granted based upon “[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.” (Code Civ. Proc., § 657, subd. 4.)
Edwards’s argument fails for two reasons. First, her separation was nonretaliatory as a matter of law. She was separated from service on August 13, 2004, because, on that date, she exhausted all of her leave time. The LAUSD did nothing wrong by approving Edwards’s leaves of absence. Under state and local law, when such benefits are exhausted, the LAUSD is required to separate an employee from service and place her on a reemployment list for 39 months. (See Davis v. Los Angeles Unified School Dist. Personnel Com. (2007) 152 Cal.App.4th 1122, 1128, 1131–1132; Ed. Code, § 45195; LAUSD Com. Rules, rule 808(M), available at [as of May 21, 2008].) (Although Ralph placed Edwards on an illness leave starting April 22, 2004, the jury found that the leave was not an adverse employment action because Ralph acted out of concern for Edwards’s health and safety.) And here, notwithstanding Edwards’s separation from service on August 13, 2004, the LAUSD continued the interactive process, attempting to get Edwards back to work until May 27, 2005, when Ralph wrote to Appleton, saying that the note from the psychiatrist needed to be more specific about the source of Edwards’s stress. But, in response, Edwards withdrew from the interactive process: Neither she, Appleton, nor the psychiatrist ever provided the requested information.
Second, assuming Edwards did not know she had been separated from service, she could have easily discovered it. And she had been put on inquiry notice. In 2004 and 2005, Edwards received letters that raised serious questions about her employment status. Ralph’s December 21, 2004 letter — offering Edwards a return to work in accordance with Dr. Bulpitt’s recommendations — mentioned that Edwards might be separated when her benefits ran out. In 2005, the LAUSD sent Edwards two letters. The October 19, 2005 letter said she had been absent without an approved leave since August 13, 2004. The December 2, 2005 letter informed Edwards that a recommendation had been made to dismiss her from employment due to abandonment of her position. Appleton responded to both letters by saying that Edwards had been and remained ready to return to work — a representation contradicted by Appleton’s December 22, 2004 letter to Ralph, indicating that the LAUSD’s December 2004 offer to return to work was not acceptable because it did not accommodate the psychiatrist’s advice about stress. These letters put Edwards on notice that her employment status was questionable.
In light of the letters to Edwards and her lengthy absence from work — more than two consecutive years before trial — she had a duty to contact the LAUSD and inquire into her job status. She could not sit back quietly and passively, waiting for trial, and, after the verdict, fault defense counsel for not volunteering information about her job classification — as Edwards does in her appellate brief. A litigation attorney for the LAUSD is not a human resources representative. Edwards could have made a simple telephone call or sent a letter to the LAUSD to learn about her job situation. Instead, she did nothing.
As a final point on this subject, we emphasize that, contrary to Edwards’s repeated assertions, she was not “terminated.” She was “separated” and placed on a reemployment list for 39 months. “Separation” is comparable to being laid off with preferential rights to return to work. The difference is significant. (See Davis v. Los Angeles Unified School Dist. Personnel Com., supra, 152 Cal.App.4th at pp. 1128, 1131–1132.) In fact, Edwards was still separated — not terminated — at the time of trial.
E. The Verdict Form
Edwards complains that the verdict form omitted her claim for denial of transfer and employment. This claim, alleging a violation of the FEHA’s prohibition on disability discrimination (§ 12940, subd. (a)), was based on (1) the LAUSD’s failure to respond to Edwards’s direct request for a transfer, and (2) Ralph’s alleged conduct in preventing Edwards from getting the job at Dorsey High School. Edwards’s challenge to the verdict form fails for two reasons.
First, the omission was waived in the trial court. The verdict form was jointly drafted by Edwards’s “second chair” attorney, Frank Magnanimo, and one of the defense attorneys, Rupert Byrdsong, by telephone. Meanwhile, Appleton, the “first chair” attorney, was working with another defense attorney on the jury instructions. Just before the jury was brought into the courtroom to hear the instructions and closing argument, the following exchange took place:
“The Court: Is there anything else?
“Mr. Magnanimo: We gave you a special verdict form that was agreed to.
“The Court: It is agreed upon?
“Mr. Magnanimo: Yes.
“Ms. Appleton: And, Your Honor, I just wanted to remind you about the stipulated facts and exhibits that we had to add.
“The Court: Let’s bring in the jury.”
After the jury returned the verdict, Appleton saw the verdict form for the first time and did not like much about it, filing papers, together with a declaration, listing numerous purported errors. In the declaration, she complained that defense counsel did not give her a copy of the form before the jury retired to deliberate. Yet, if defense counsel took longer than expected to finalize the form, nothing prevented Appleton from asking to see it before the trial court gave it to the jury. Appleton raises the issue of tardiness now, but this attack on the judgment could have been avoided by a timely request to the trial court then. Further, Appleton does not contend that the final version of the form — the one used by the jury — differed from the one that Magnanimo and Byrdsong had jointly drafted by telephone.
In essence, Appleton argues that if she, as the “first chair” attorney, did not approve the verdict form, then the “second chair” attorney’s work and representations to the trial court should be disregarded. On the contrary, Magnanimo’s contributions and statements on the record render Appleton’s silence of no consequence. Any defect in the verdict form was waived. (See Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 131; Lynch v. Birdwell (1955) 44 Cal.2d 839, 851; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1687.)
Second, the omitted claim was not a distinct cause of action. It was simply a disability discrimination claim that focused on two alleged adverse employment actions. But the FEHA does not permit a separate discrimination claim for each adverse consequence caused by the same alleged discrimination. Having heard all of the evidence, and based on the instructions, the jury would have considered the theory of liability in the omitted claim in resolving the cause of action for disability discrimination. Put another way, the omitted claim was subsumed in a cause of action that appeared on the verdict form. The error in the form was therefore harmless.
In her reply brief, Edwards argues for the first time that an error in drafting a verdict form, if excusable, may be remedied under section 473 of the Code of Civil Procedure, presumably by subjecting everyone to a new trial. We do not decide whether the statute is of such broad scope. Because this point was not raised in the opening brief, it is waived. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–766.)
III
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.