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Haltom v. Southland Title of Orange County

California Court of Appeals, Fourth District, Third Division
Sep 10, 2008
No. G037296 (Cal. Ct. App. Sep. 10, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 03CC04651, Robert J. Moss, Judge.

William J. Kopeny & Associates, William J. Kopeny; Law Offices of Robert G. Johnson, Jr., Robert G. Johnson, Jr., for Plaintiff and Appellant.

Hogan & Hartson, Kenneth D. Klein and Amy M. Gallegos for Defendants and Respondents.


OPINION

O’LEARY, J.

Michael R. Haltom appeals from the judgment following a jury trial in favor of his former employer, Southland Title of Orange County and Southland Title Corporation (hereafter collectively and in the singular “Southland”), in this wrongful termination action. Haltom contends reversal is required due to: (1) the trial court’s refusal to give certain jury instructions; (2) inconsistent special verdicts; and (3) lack of substantial evidence to support the verdict. We find his contentions without merit and affirm the judgment.

I

FACTS AND PROCEDURE

The Complaint/Summary Judgment/Prior Opinion

In his complaint, Haltom alleged he had worked for Southland as a title insurance sales representative and always received superior performance reviews. His supervisors at Southland were aware of his physical disability of alcoholism and that he had attended a weekend alcohol treatment program. In February 2002, Haltom’s mother became ill and was hospitalized. Haltom took a leave of absence to care for her and when he returned, he was terminated for job abandonment.

Haltom’s complaint contained the following causes of action: (1) wrongful termination in violation of public policy under the California Family Rights Act (CFRA) (Gov. Code, § 12945.2) and the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940), alleging he was terminated due to taking family leave to care for his mother and because of his alcoholism; (2) employment discrimination under the FEHA, alleging he was terminated due to his physical disability (alcoholism); (3) violation of the CFRA, alleging Southland refused to grant him protected family leave to care for his sick mother; (4) failure to accommodate under the FEHA, alleging Southland failed to make reasonable accommodation for Haltom’s physical disability of alcoholism and failed to engage in an “interactive process” to determine such reasonable accommodation; and (5) retaliation, alleging he was terminated in retaliation for taking CFRA leave.

Haltom’s complaint contained other causes of action that were previously adjudicated and are not at issue on this appeal.

The trial court granted Southland’s motion for summary judgment/adjudication. In our prior opinion, we reversed finding there were material issues of fact on each of Haltom’s causes of action. (Haltom v. Southland Title of Orange County (July 19, 2005, G034324) [nonpub. opn.] (Haltom I).)

Trial Evidence

Haltom was hired in August 1999 as a title insurance sales representative. Kent Koepsell was Haltom’s immediate supervisor and Jeff Fox was the manager of Southland’s Orange County office at the relevant times. Koepsell was aware Haltom was a recovering alcoholic and had no problems with that; there were other recovering alcoholics employed by Southland.

During his first two years at Southland, Haltom’s work was well regarded and he was very successful. He was close friends with Koepsell and had good relationships with Fox and other supervisors. Haltom’s at-will employment contract provided he was to be paid a commission of 20 percent of the first $50,000 in monthly premiums he generated and 21.5 percent of premiums over $50,000. The minimum production requirement for a new sales representative was $20,000 a month in premiums generated and when Haltom first started he was guaranteed a base salary of $2,000 a month against his commissions. By the time his employment was terminated, Haltom was receiving a base salary of $8,000 a month credited against his commissions on an agreed production goal of $50,000 in monthly premiums. Haltom explained if he generated less than $50,000 in a month, he was not expected to return his base salary.

In early 2001, Haltom started drinking again. By the end of the year, Koepsell believed Haltom’s production was declining. Haltom was not communicating with Koepsell, and Koepsell had received complaints from some of Southland’s customers that Haltom was not returning telephone calls and not properly servicing his accounts. In December 2001, at a company function held during work hours, Fox noticed Haltom appeared to be intoxicated.

Haltom was also apparently having marital problems at the time. Haltom’s wife, from whom he was divorced by the time of trial, testified at trial that she was very concerned about his resumed drinking and had attempted to enlist Koepsell’s help in arranging an “intervention” in January 2002.

Koepsell met with Haltom on January 9, 2002, at a hotel in Dana Point where Haltom was living. Koepsell understood Haltom was separated from his wife and drinking. Haltom told Koepsell “‘he had not been in the field’” for most of December 2001. Koepsell encouraged Haltom to enter an alcohol treatment program telling him Southland would “support” him. Koepsell could not recall if he specifically told Haltom he was entitled to 30 days paid leave for such treatment.

Later in January, Koepsell and Fox contacted Mary Ann Kelly, Southland’s vice-president for human resources. They advised her that Haltom would be calling her for information on treatment programs, and asked her to find a program that would be covered by Southland’s medical insurance policy. They asked Kelly to make sure Haltom understood Southland “would pay him for an indefinite period of time, put someone in the field for him, and just let him take care of himself.” Koepsell and Fox told Kelly they were concerned because Haltom was “on the fence” about going into a treatment program and they did not want him to be scared off.

When Haltom called Kelly, she told him Southland would pay for whatever amount of time he needed for treatment. Kelly testified she was trying to remain “gentle” in her conversation so as not to scare Haltom off going into a treatment program. She suggested to Haltom he take “30 days because that is what the medical benefits would have covered, is 30 days of inside the [treatment] facility.” At that suggestion, Haltom “started to freak and said, ‘30 days? I don’t even have a drinking problem. I am doing this for [Koepsell] and [Fox]. I am not going in there for 30 days.’” So Kelly backed off and told Haltom to “‘just go in’” and the company would “‘pay you for whatever time you need.’” Kelly did not specifically tell Haltom he could have 12 weeks unpaid leave under the CFRA or that he could get six weeks disability leave from the state because both would have required Haltom to get a medical confirmation he had a medical condition (i.e., alcohol dependence) that qualified him for leave—something she felt Haltom would not be willing to do given that he denied having a problem. Additionally, Kelly thought she was offering Haltom better benefits—paid leave for as long as he needed to be in treatment.

Sometime after his conversation with Kelly, Haltom checked himself into a treatment program at Hoag Hospital on Friday, January 25, 2002. Kelly spoke with Haltom’s wife to assist with insurance benefits. Haltom checked himself out of the hospital at the end of the weekend. Koepsell and Fox knew Haltom continued to drink after checking himself out of the treatment program.

Koepsell continued to have problems with Haltom’s job performance. Koepsell and Fox met with Haltom on February 13, 2002. Haltom acknowledged he had not been doing much work and was drinking. Fox and Koepsell reiterated to Haltom they wanted to help him, would support him if he wanted to take time off, but needed to see improvement in his job performance or he would be fired.

Haltom failed to show up for a meeting with Koepsell scheduled for Monday, February 26, 2002. The next day, Haltom called Koepsell and said his mother had suffered a heart attack or stroke and he was going to the desert, where she lived. Koepsell told Haltom not to worry, he should take whatever time he needed, and Koepsell would make sure Haltom’s clients were taken care of while he was gone. Suspicious Haltom was going to the desert to party, Koepsell confirmed with Haltom’s wife that indeed Haltom’s mother was very ill and in the hospital. Haltom received full pay and his vacation time was not docked during the time he was in the desert. Koepsell never specifically told Haltom he could request unpaid CFRA leave.

Haltom went to Palm Desert and checked into a luxury hotel with his married girlfriend, Cathy Porter. The two remained at the hotel for two weeks. During that time, Haltom visited his mother in the hospital once or twice a day for 20 minutes. Haltom’s mother was released from the hospital on March 9, and she returned to her home in Indio. Haltom and Porter remained at the Palm Desert hotel for five or six more days before returning to their respective homes and families in Orange County on March 15. During the two weeks he was in Palm Desert, Haltom periodically called Southland’s offices and his clients.

Haltom called Koepsell on March 15 and told him he was back from the desert. Koepsell and Fox made several attempts at contacting Haltom throughout the next week, but he did not return any of their telephone messages. Southland’s policy was that a failure to respond to communication from supervisors for more than three days constituted job abandonment. After conferring with Kelly, Koepsell and Fox terminated Haltom’s employment on March 22, 2002, for job abandonment. Although Haltom testified he was working the entire week prior to his termination, he could not recall if he ever called the office and his cell phone bills did not show any calls to Koepsell or Fox during that week.

Koepsell did not tell Kelly at the time she approved Haltom’s termination that Haltom had been in the desert for two weeks prior to March 15. Kelly testified when she learned about Haltom’s mother’s illness about 30 days later, she went back and reviewed her files to make sure the termination was “for the proper reasons.” Her decision did not change, she believed Haltom’s drop in production, and his failure to communicate with clients and supervisors demonstrated he had abandoned his job.

Kelly also testified that when told in March about the continuing problems Koepsell and Fox were having with Haltom, she specifically did not factor in that the problems could be alcohol related because she believed doing so would constitute discrimination. When Kelly spoke to Haltom in January, “[he] made it pretty clear to me that he did not have a drinking problem. And for me to assume and start treating him as if he did, would be discrimination. And that is against the law.”

In his opening brief, Haltom states: “Kelly took into consideration problems related to Haltom’s alcoholism in her agreement to terminate Haltom’s employment.” He cites as support for that claim portions of Kelly’s deposition that are contained in the appellant’s appendix. But Haltom has not indicated if this deposition testimony was ever introduced at trial. We have reviewed Kelly’s trial testimony and do not see that the deposition testimony was ever introduced. Furthermore, we have read the deposition testimony to which Haltom refers and it is completely consistent with Kelly’s trial testimony.

In his deposition testimony, which was introduced into evidence, Haltom stated that from the time he returned to Orange County from Palm Desert on March 15, until he was fired on March 22, he was working the entire time and never returned to the desert. He denied that his mother had any subsequent medical emergencies and testified his sister had come to stay with his mother after March 15, so there was no reason for him to return.

One of the documents produced by Southland was an e-mail written by Koepsell to Fox dated Tuesday, March 19, 2002, detailing Koepsell’s reasons for recommending Haltom’s termination. In the e-mail, Koepsell made a reference to having “called [Haltom] on Monday evening leaving a message that we wanted to meet on Tuesday, . . . . He than [sic] called back and told us that his [m]other had a stroke and he needed to go to the desert and he would meet with us upon his return.” Koepsell testified at trial the “‘Monday’” he referred to in the e-mail was the Monday preceding Haltom’s Tuesday, February 27 call to Koepsell. Koepsell testified he never received any telephone calls from Haltom after the March 15 call.

At trial, Haltom testified, contrary to his deposition testimony, he went back to the desert a second time. Haltom said that on Tuesday, March 19, he was told by his mother’s boyfriend she was having some numbness in her hands. Fearing his mother was having a stroke, Haltom drove to the desert that afternoon to check on her and returned that night. Before he went, Haltom packed an ice chest with abalone that he took to his mother because it was her favorite food and it would cheer her up and because he thought pounding abalone would be good therapy for her hands—“if she wanted to eat it, she was going to have to pound it out.” Haltom said he called Koepsell on March 19 and told him he was going back to the desert, and Koepsell did not suggest he had any problem with that.

Jury’s Special Verdict

After the trial court granted Southland’s motion for directed verdict on Haltom’s punitive damage claim, the matter was submitted to the jury on a special verdict form, and the jury returned a complete defense verdict. On the first cause of action for “CFRA Rights Retaliation,” the jury answered the first two questions as follows: (1) “Was [Haltom] eligible for family care leave?” Yes; and (2) “Did [Haltom] take family care leave?” No. On the second cause of action for “Violation of CFRA Rights,” the jury answered the first four questions as follows: (1) “Was [Haltom] eligible for family care or medical leave?” Yes; (2) “Did [Haltom] request leave to care for his parent who had a serious health condition?” Yes; (3) “Did [Haltom] provide reasonable notice to [Southland] of his need for family care leave?” Yes; and (4) “Did [Southland] refuse to grant [Haltom’s] request for family care leave?” No.

On the third cause of action for “Disability Discrimination—Disparate Treatment,” the jury found Southland believed Haltom had a physical condition (alcohol dependence), which limited his ability to work, but that belief was not a motivating reason for its decision to discharge him. On the fourth cause of action for “Disability Discrimination—Reasonable Accommodation,” the jury found Haltom had a physical condition that limited his ability to work, Southland was aware of that condition, but Southland did not “fail to provide reasonable accommodation for [Haltom’s] physical condition[.]” On the fifth cause of action for “Wrongful Discharge in Violation of Public Policy,” the jury found neither Haltom’s alcoholism nor taking CFRA leave was a motivating reason for his discharge.

The trial court entered judgment in Southland’s favor. The court denied Haltom’s motion for new trial, and Haltom appealed from the judgment.

II

INSTRUCTIONAL ERROR: DISABILITY DISCRIMINATION CAUSES OF ACTION

A. Special Instruction No. 4: Reasonable Accommodation—Interactive Process

Haltom contends the trial court erred when it refused to give the jury his proffered special instruction No. 4 concerning an employer’s affirmative duty to engage in an interactive process with the employee to find a reasonable accommodation for the employee’s disability. We find no reversible error.

“Under [the] FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. [Citations.] . . . Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. [Citations.]” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425 (Wysinger); see also Gov. Code, § 12940, subds. (m) & (n).)

Generally, the “‘interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ [Citation.] An employee cannot demand clairvoyance of his employer. [Citation.] ‘“[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.”’ [Citation.] ‘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.’ [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.)

However, as we observed in Haltom I, an employer might violate its obligations even when the employee did not specifically ask for any accommodation. “[A]s noted in Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, . . . 1112 [(Barnett)][vacated on other grounds in U.S. Airways Inc. v. Barnett (2002) 535 U.S. 391] the employee is not always required to specifically ask for an accommodation. The employer’s obligation to engage in an interactive process to identify and implement appropriate reasonable accommodations may be triggered by the employer’s recognition of the need for such an accommodation. . . . ‘“An employer should initiate the reasonable accommodation interactive process without being asked if the employer: (1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.”’ [Citation.]” (Haltom I, supra, at p. 12.)

At Haltom’s request, the trial court instructed the jury with Judicial Council of California Civil Jury Instructions (2008) CACI No. 2541 on the elements of a cause of action for failure to provide a reasonable accommodation for a disability. The jury was told Haltom must prove Southland was an employer; he was its employee; he had a physical condition that limited his ability to work; Southland knew he had that physical condition; Southland failed to provide a reasonable accommodation for his condition; he was harmed; and Southland’s failure to provide a reasonable accommodation was a substantial factor in causing his harm. The jury was also given CACI No. 2542 defining what constituted a reasonable accommodation: “A reasonable accommodation is a reasonable change to the workplace that allows an employee with a disability to enjoy the same benefits and privileges of employment that are available to employees without disabilities. . . .” The instruction went on to describe what might constitute a reasonable accommodation and advised “[i]f more than one accommodation is reasonable, an employer satisfies its obligation to make a reasonable accommodation if it selects one of those accommodations in good faith.” The jury was also given Haltom’s requested special instruction No. 1 that “leave for the employee to seek treatment or rehabilitation” could constitute a reasonable accommodation.

The trial court, however, refused to give Haltom’s special instruction No. 4, which would have told the jury an employer also has a duty to engage in an interactive process to determine what would constitute a reasonable accommodation for the disabled employee. Haltom’s requested special instruction No. 4 essentially reiterated the principles set forth in Haltom I and Barnett, supra, 228 F.3d 1105, i.e., that an employer’s duty to engage in an interactive process may be triggered by the employer’s recognition of the need for an accommodation, even if the employee does not request an accommodation. Haltom argued his theory was that Southland not only failed to accommodate his disability of alcoholism, but it failed to participate in an interactive process that would have identified a reasonable accommodation for his alcoholism.

CACI No. 2546, which became effective after the trial in this action, sets forth the elements of a failure to engage in interactive process claim, but does not address the possibility we mentioned in Haltom I, that the employer’s duty might arise even if the employee does not specifically request an accommodation.

We need not decide whether the trial court erred by refusing Haltom’s interactive process instruction, because even if refusing the instruction was error, Haltom was not harmed. In order for instructional error to result in reversal, there must be a reasonable probability of a different result had the mistake not occurred. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570.) There is no reasonable probability of a different result.

For this reason, we need not address Haltom’s argument that under the doctrine of law of the case, the trial court was obligated to give the special instruction “even without a request from [Haltom]” because it was a correct statement of the law as set forth in Haltom I.

The jury found unanimously that Southland did not fail to offer Haltom a reasonable accommodation. The uncontroverted evidence at trial was that Koepsell, Fox, and Kelly all discussed with Haltom the possibility of his taking leave to enter an alcohol treatment program. Haltom does not suggest any other possible reasonable accommodation. Koepsell and Fox both testified to meetings they had with Haltom at which they specifically told him Southland would support him for whatever amount of time he needed to be in a treatment program. Kelly testified she specifically told Haltom that Southland would give him paid leave for whatever amount of time he needed for treatment. She specifically mentioned the possibility of his taking 30 days of paid leave (the coverage provided for by Southland’s medical insurance), but Haltom balked at the suggestion. Kelly backed off the 30 days suggestion, but reiterated that Southland would pay him “‘for whatever time you need.’”

Haltom contends that whether he was ever told he could take leave to seek treatment for his alcoholism was “sharply disputed” at trial. But the evidence to which he points is his counsel’s closing argument imploring the jury to reject the testimony of Southland’s witnesses. “[C]ounsel’s arguments are not evidence.” (Maudlin v. Pacific Decisions Sciences Corp. (2006) 137 Cal.App.4th 1001, 1015.) Haltom does point to testimony from Koepsell and Kelly that they did not specifically tell Haltom he could take up to 84 days unpaid leave under the CRFA, or 42 days paid disability leave, but he does not point to any evidence disputing the testimony that both witnesses told him he could take paid leave for an indefinite time period to enter treatment and that Kelly specifically suggested he could take 30 days.

In view of the jury’s special verdict finding Southland did not fail to provide Haltom a reasonable accommodation, it is not reasonably probable the jury could have found in Haltom’s favor on his failure to engage in interactive process claim. Although an employer’s duty to engage in an interactive process is separate from its duty to offer a reasonable accommodation, when a reasonable accommodation has been offered, an employer cannot be held nonetheless liable for failing to engage in an interactive process to identify such an accommodation. For example, in Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 229, the court concluded an employer could not be held liable for failing to engage in interactive process when the employee was in fact offered a reasonable accommodation. (See also Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 829, fn. 5 [fact that employer reasonably accommodated plaintiff’s disability precluded claim it failed to engage in interactive process].)

Wysinger, supra, 157 Cal.App.4th 413, does not compel a different result. Haltom suggests Wysinger, supports the conclusion a jury could find an employer offered the employee a reasonable accommodation, but the employer nonetheless violated its duty to engage in an interactive process to identify a reasonable accommodation. Wysinger does not support such a conclusion.

In Wysinger, the employee suffered from various illnesses that were aggravated by his lengthy daily commute to work. Over several years, the employee made numerous well-documented requests to his supervisors to discuss his deteriorating health condition and he repeatedly requested an accommodation. The employer ignored the employee, and steadfastly refused to discuss the matter with him or consider any accommodation. (Wysinger, supra, 157 Cal.App.4th at pps. 418-419, 422.) The jury returned a special verdict finding the employer did not fail to provide a required reasonable accommodation to the employee, but it did fail to engage in an interactive process with the employee to identify a reasonable accommodation. (Id. at p. 424.)

Cognizant of the appellate mandate that, “Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them[,]” (Wysinger, supra, 157 Cal.App.4th at p. 424, italics added), Wysinger concluded, “[T]he jury could [have found] there was no failure to provide a required accommodation because the parties never reached the stage of deciding which accommodations were required. [Employer] prevented this from happening by its refusal to engage in the interactive process.” (Id. at p. 425.) Wysinger suggested in particular the employer could prevail on the failure to accommodate cause of action because the disability was one for which “there were no available reasonable accommodations[,]” but without at least engaging in an interactive process one would never know—“Indeed, the interactive process could reveal solutions that neither party envisioned.” (Id. at pp. 424-425.) Unlike Wysinger, where the evidence was the employer refused to discuss any accommodation with the employee, the evidence here is that Haltom was offered the only reasonable accommodation he suggests existed for an employee whose alcoholism is impairing his ability to work— a leave of absence to enter a treatment program. (See Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 226 [reasonable accommodation can include providing leave for alcohol treatment].)

Haltom’s real complaint is that Southland did not do more to persuade him to take such a leave. Kelly suggested Haltom take up to 30 days leave for treatment, but he immediately balked at the suggestion, denying such an amount of leave was unnecessary. In our prior opinion, we observed that “denial” is a characteristic feature of alcoholism, from which Haltom extrapolates a jury could find an employer’s duty to engage in an interactive process, requires not simply offering leave for alcohol treatment, but aiding the employee in recognizing the need for such leave. But our observation was in the context of there being a material issue of fact as to whether Haltom had been offered a reasonable accommodation so as to survive summary judgment. We stated, “There is evidence from which a trier of fact could conclude Haltom’s supervisors knew he was an alcoholic and believed Haltom’s alcoholism was interfering with his job performance. True, Haltom denied his resumed alcohol use was a problem for him at work, but it is axiomatic that denial is central to alcoholism. There was evidence that Southland’s policy was to permit employees to take up to 30 days for treatment, but no one ever advised Haltom of this fact. We conclude there is a material issue as to whether Southland reasonably should have offered Haltom the opportunity to undergo such a treatment program prior to terminating his employment.” (Haltom I, supra, at p. 13, italics added.) But nothing in our prior opinion suggested the employer is responsible for leading an employee out of his or her state of denial.

The uncontroverted evidence at trial was that Haltom was offered leave for treatment for his alcoholism. A jury could not reasonably conclude Southland nonetheless failed to engage in an interactive process because it was unsuccessful in persuading Haltom to accept the accommodation that was offered. (See Gosvener v. Coastal Corp. (1996) 51 Cal.App.4th 805, 813 [employer not required to be insurer of alcoholic employee’s recovery], disapproved on other grounds in Colmenares v. Braemer County Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.)

B. Special Instruction No. 13: Disability Discrimination

Haltom contends the trial court erred by refusing his proposed special instruction No. 13 on disability discrimination. We find no error.

At Haltom’s request, the jury was instructed with CACI No. 2540 on disability discrimination under the FEHA. The instruction advised the jury that to prevail on his cause of action Haltom had to prove: he was Southland’s employee; Southland believed he had a physical condition limiting his ability to work; he was able to perform his essential job functions; Southland fired him; Southland’s belief he had a physical condition was a motivating reason in firing him; he was harmed; and Southland’s decision to fire him was a substantial factor in causing his harm.

Haltom’s proposed special instruction No. 13 would have additionally advised the jury, “If: [¶] 1) you believe that [Haltom] has proved that: he had a physical condition; he was performing competently as a sales representative; he suffered termination; and the circumstances of his discharge suggests a discriminatory motive; and [¶] 2) you do not believe [Southland’s] proffered explanation for [Haltom’s] discharge, then: [¶] you may infer that [Southland’s] real motive was discriminatory.”

The court rejected the instruction because the instructions on circumstantial evidence, direct evidence, and indirect evidence all discussed inferences “and the jury can draw inferences, and that can be argued. I don’t think a specific instruction on the application is warranted.” Haltom argued the instruction was a correct statement of law on pretext discrimination.

On appeal, Haltom argues the trial court was obligated under the law of the case doctrine to give the proposed special instruction because it was a correct statement of the McDonnell Douglas burden shifting test applicable to disparate treatment claims as we set forth in Haltom I. In Haltom I we explained, “At trial, the McDonnell Douglas test requires the plaintiff to establish a prima facie case of discrimination by providing evidence that ‘(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination . . . [,] and (4) some other circumstance suggests discriminatory motive. [Citations, fn. omitted.]’ [Citation.] If the plaintiff establishes a prima facie case, then a presumption of discrimination arises and ‘the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to “raise[] a genuine issue of fact” and to “justify a judgment for the [employer],” that its action was taken for a legitimate, nondiscriminatory reason. [Citations.] [¶] If the employer sustains this burden, the presumption of discrimination disappears. [Citations.] The plaintiff must then have the opportunity to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive. [Citations.]’ [Citation.]” (Haltom I, supra, at p. 9.)

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas).

The McDonnell Douglas construct is simply not applicable in the jury instruction context. As noted in Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 202 (Caldwell), “the construct of the shifting burdens of proof enunciated in McDonnell Douglas is an analytical tool for use by the trial judge in applying the law, not a concept to be understood and applied by the jury in the factfinding process.” Caldwell explained, “[b]y the time that the case is submitted to the jury, . . . the plaintiff has already established his or her prima facie case, and the employer has already proffered a legitimate, nondiscriminatory reason for the adverse employment decision, leaving only the issue of the employer’s discriminatory intent for resolution by the trier of fact. Otherwise, the case would have been disposed of as a matter of law for the trial court. That is to say, if the plaintiff cannot make out a prima facie case, the employer wins as a matter of law. If the employer cannot articulate a nondiscriminatory reason for the adverse employment decision, the plaintiff wins as a matter of law. In those instances, no fact finding is required, and the case will never reach a jury.” (Id. at p. 204.) But when the case is submitted to the jury, the burden-shifting construct “‘drops from the case,’” and “the fact finder will have only to decide the ultimate issue of whether the employer’s discriminatory intent was a motivating factor in the adverse employment decision.” (Id. at pp. 204-205, italics added.) Indeed, in Caldwell, the court of appeal held the jury should not have been instructed on the McDonnell Douglas burden shifting paradigm. (Id. at p. 204.)

Haltom has not demonstrated the instructions given by the trial court failed to properly instruct on his disability discrimination cause of action. CACI No. 2540 properly advised on the elements of the disability discrimination claim, and the jury was given instructions concerning direct and indirect evidence, judging witness credibility, and the parties’ burden of proof. Haltom’s counsel was free to argue poor performance and job abandonment was merely a pretext for his firing. There was no error in the court’s refusal to give Haltom’s proposed special instruction.

C. Special Instruction No. 5: Motivating Factor

Haltom contends the trial court erred by refusing to give his proposed special instruction No. 5, which defined the term “motivating factor” as follows: “A motivating factor is something that moves the will and induces action even though other matters may have contributed to the taking of the action.” Haltom provides no analysis or legal authority supporting his claim and, therefore, it is waived. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim).)

We note the term “motivating factor” is not a term used in any of the jury instructions that were given. The instructions that were given on disability discrimination, CACI No. 2540, and wrongful termination, CACI No. 2430, both use the term “motivating reason” not “motivating factor” (e.g., the discriminatory reason was a “motivating reason” for his termination). The special instruction Haltom requested is taken directly from the concluding paragraph of BAJI No. 12.12 on disability discrimination (which was replaced by the CACI instruction that was given), which used the term “motivating factor.” (See Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 479, italics added.) And, in any event, we cannot fathom that Haltom was in anyway harmed by the omission. There is nothing suggesting “motivating factor” or “motivating reason” are terms having a special or technical meaning in the context of a discrimination claim. Commonly understood terms need not be defined for the jury even upon a party’s request. (See People v. Sanders (1995) 11 Cal.4th 475, 561-562.)

III

INCONSISTENT VERDICTS/SUBSTANTIAL EVIDENCE: CFRA CAUSES OF ACTION

A. Inconsistent Verdicts

Haltom contends the jury’s special verdicts on his CFRA violation and retaliation causes of action are inconsistent, requiring reversal for new trial. We reject his contention.

The CFRA creates two interrelated rights for employees falling within its purview: First, the employee has the right to take up to 12 weeks of leave to care for an immediate family member with a “serious health condition,” or because of the employee’s own serious health condition. (Gov. Code, § 12945.2.) Second, an employee who takes CFRA leave is guaranteed that taking leave will not result in a loss of job security or in other adverse employment actions. (Ibid.; see Department of Fair Employment & Housing v. Verizon California, Inc. (2003) 108 Cal.App.4th 160, 161-162, fns. omitted (Verizon California); see also Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1132 (Liu).)

Because the CFRA is substantively identical to its federal counterpart, the Family and Medical Leave Act of 1993 (FMLA), California courts routinely rely on federal cases in reviewing the CFRA. (See Dudley v. Dept. of Transportation (2001) 90 Cal.App.4th 255, 261; Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 993.)

Haltom contended Southland violated the CFRA by denying him family leave to care for his sick mother and retaliated against him for having taken or requested CFRA leave. In its special verdict form, the jury concluded as to the cause of action for CFRA retaliation that Haltom was eligible for family care leave, but that he did not take family care leave. As to the cause of action for violation of CFRA rights, the jury concluded Haltom was eligible for and requested family care leave, but Southland did not refuse his request.

Haltom complains it is inconsistent for the jury to have found as to the one cause of action (denial of family care leave), he requested family care leave and Southland did not deny it, but to then find as to the other cause of action (retaliation), that he never took family care leave. Furthermore, he contends, the weight of the evidence demonstrates he asked for family care leave to go see his mother who was in the hospital. He took such leave, and was discharged because of it.

Preliminarily, we reject Haltom’s insinuation the trial court erred by submitting to the jury a special verdict form he describes as “tedious if not outright confusing” and which allowed the jury to return verdicts that were “prejudicially and hopelessly inconsistent[.]” The appellant’s appendix does not contain the verdict form that was submitted to the jury, only the final judgment that incorporates the jury’s special verdicts on 34 questions. In its brief, Southland states the special verdict form was jointly prepared and submitted by the parties and Haltom does not dispute this representation. The reporter’s transcript supports Southland’s assertion. Prior to submitting the case to the jury, the trial court had the following discussion with counsel: “Let’s talk about the verdict form. I received an 11 page, 35 question verdict form which you’re going to have a jury revolt on your hands, I’m afraid. Do you both accept this verdict form?” The court then specifically asked Southland’s counsel, “Did you see it . . . ?” Southland’s counsel replied, “I have. We will.” Haltom’s counsel made no comment. The trial court directed the court clerk to delete the 35th question (concerning punitive damages) and put the verdict form on a caption. Haltom’s apparent participation in preparing the special verdict form precludes him from complaining it allowed the jury to render inconsistent verdicts. (See Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686-1687 [inconsistent answers to special verdict questions did not invalidate jury’s verdict where appellant participated in drafting special verdict form and specifically wanted both questions on verdict form].)

Furthermore, we do not agree with Haltom the jury’s findings are inconsistent. “The first principle of inconsistent general and special verdicts is that they must be harmonized if there is any ‘possibility of reconciliation under any possible application of the evidence and instructions. If any conclusions could be drawn thereunder which would explain the apparent conflict, the jury will be deemed to have drawn them.’ [Citation.]” (Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.)

In its findings on Haltom’s cause of action alleging he was denied family care leave, the jury found Haltom requested leave and Southland did not deny him family care leave. On Haltom’s retaliation cause of action, the jury found Haltom did not take family care leave. Haltom urges it is completely inconsistent to find on the one hand he asked for family care leave and was granted family care leave, but on the other hand that he did not take family care leave. We disagree. The jury could easily find Haltom qualified for leave—his mother was indeed quite ill. But “it is not enough that [his] mother had a serious health condition.” (Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, 995 (Pang), fn. omitted.) He had to also be providing his mother with the kind of care envisioned by the CFRA. (Ibid.)

In what is more akin to a substantial evidence argument, Haltom states the jury’s finding Southland did not deny Haltom CFRA leave “is curious at best or not supported by any evidence at all, at worst[,]” because Southland did not properly designate his two weeks in the desert as CFRA leave. In short, he contends Southland improperly characterized his leave as personal leave, when it should have been characterized as CFRA leave. California Code of Regulations, title 2, section 7297.4, subdivision (a)(1)(A), provides, “Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee’s spokesperson, and to give notice of the designation to the employee.” The mischaracterization of CFRA leave can constitute a violation of an employer’s obligation to grant CFRA leave. (Liu, supra, 347 F.3d at pp. 1134-1135.) But as Southland points out, Haltom did not request complete jury instructions or special verdict questions that would have enabled the jury to find a violation of the CFRA based on mischaracterization of leave and, therefore, cannot complain the jury failed to find in his favor on this theory. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534-1535.) We must test the sufficiency of the evidence against the jury instructions that were given. The jury found Southland did not deny Haltom CFRA leave—the logical explanation is the jury believed Southland did not deny CFRA leave because Haltom did not take CFRA leave as he was not providing care for his mother during the two weeks he was absent.

The jury could reasonably have concluded that although some of the requisites for being granted family care leave had been met (e.g., sick mother in the hospital, notice to employer that leave is requested), Haltom did not in fact take a family care leave because for the two weeks he was in Palm Springs he was not providing care for his sick mother. Rather, he was enjoying an extended tryst with his girlfriend. The uncontroverted evidence was that while his mother was in the hospital, Haltom and his girlfriend spent two weeks checked into a luxury Palm Desert hotel, they were drinking daily, and during that time Haltom saw his mother at the hospital twice a day for only 20 minutes.

Haltom protests that qualifying “‘care’” includes “‘providing psychological comfort, and arranging “third party” care for the child, parent or spouse, as well as directly providing, or participating in the medical care.’ [Citation.]” (Pang, supra, 79 Cal.App.4th at pp. 995-996.) Thus, he urges that by being present in the desert area near his mother while she was in the hospital and seeing her daily, he was necessarily providing important psychological care and comfort to her. But Haltom cites to no authority supporting his suggestion that his activities in the desert constituted providing care within the meaning of the CFRA as a matter of law. While Haltom’s evidence was enough to get Haltom past summary judgment on his CFRA causes of action (see Haltom I, supra, at pp. 13-18), the jury was not required to find Haltom was providing care for his mother. Thus, we find no inconsistencies in the jury’s special verdicts.

B. Substantial Evidence

As a separate argument, Haltom asserts there is no substantial evidence to support the defense verdicts on the CFRA causes of action. His argument contains no analysis or citation to legal authority, rather it consists of three sentences referring us back to his inconsistent verdicts argument, which we have rejected. We agree with Southland that Haltom’s argument is waived. (See Kim, supra, 17 Cal.App.4th at p. 979.)

IV

DISPOSITION

The judgment is affirmed. The Respondents are awarded their costs on appeal.

WE CONCUR: SILLS, P. J., ARONSON, J.


Summaries of

Haltom v. Southland Title of Orange County

California Court of Appeals, Fourth District, Third Division
Sep 10, 2008
No. G037296 (Cal. Ct. App. Sep. 10, 2008)
Case details for

Haltom v. Southland Title of Orange County

Case Details

Full title:MICHAEL R. HALTOM, Plaintiff and Appellant, v. SOUTHLAND TITLE OF ORANGE…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Sep 10, 2008

Citations

No. G037296 (Cal. Ct. App. Sep. 10, 2008)