Opinion
B196937
9-19-2008
ROBERT SCHERMERHORN, Plaintiff and Respondent, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
Ivie, McNeill & Wyatt, Rupert A. Byrdsong and Charlie L. Hill for Defendant and Appellant. Trygstad, Schwab & Trygstad, Lawrence B. Trygstad, Shanon Dawn Trygstad and Daniel J. Kolodziej for Plaintiff and Respondent.
Not to be Published
Defendant Los Angeles Unified School District (LAUSD) appeals from the judgment entered after a jury found that LAUSD failed to engage in a timely, good faith interactive process with plaintiff Robert Schermerhorn, an LAUSD employee with a physical disability, as required by Government Code section 12940, subdivision (n). LAUSD also appeals from the trial courts orders denying LAUSDs motions for a new trial, for judgment notwithstanding the verdict, and to reduce the award of attorneys fees to Schemerhorn. We affirm.
Undesignated code section references are to the Government Code.
BACKGROUND
In 1995, LAUSD hired Schermerhorn as an "adapted physical education" teacher responsible for providing physical education (PE) instruction and supervision to special education students at several schools. On August 31, 2001, Schermerhorn filed a workers compensation claim for a work-related injury to his left hip that required hip replacement surgery. On December 6, 2001, Schermerhorn submitted a certificated request for a leave of absence, with a statement from his physician, Dr. Domenick J. Sisto, who reported his diagnosis that Schermerhorn had osteoarthritis in his left hip, indicated that Schermerhorn would undergo surgery on January 4, 2002, and estimated that Schermerhorn would be able to return to work, with restrictions, on June 30, 2002.
Schermerhorn underwent the hip replacement as scheduled. On March 1, 2002, Dr. Sisto signed a form releasing Schermerhorn to return to work as of April 1, 2002. Dr. Sisto noted various work restrictions, including no squatting, kneeling, prolonged standing or walking, pushing or pulling, climbing, rapid turning, running, jumping, or lifting or carrying of objects weighing more than 20 pounds. The release form also specified that Schermerhorn "must have an assistant." Schermerhorn testified that as of March 1, 2002, he was working out in the gym, swimming, and riding his bicycle approximately 6 to 12 miles per day.
In the first week of March 2002, Schermerhorn gave Dr. Sistos release to Jay Fischer, his supervisor at the LAUSD adapted PE program. He told Fischer that he wanted to return to work and was ready to do so, and he expressed his belief that his work restrictions could be accommodated. Fischer noted his concerns that the specified work restrictions might prevent Schermerhorn from fulfilling his job responsibilities and that LAUSD might not be able to accommodate the restrictions. Fischer referred Schermerhorn to Dr. William Bierer, LAUSDs medical director of employee health services.
On March 26, 2002, Schermerhorn saw Dr. Bierer. Dr. Bierer had Schermerhorn perform various light physical exercises, then told him that he would not clear his return to work until he was "permanent and stationary," a term applying to the workers compensation context meaning that a patients condition will neither improve nor deteriorate significantly in the foreseeable future. Dr. Bierer admitted at trial, however, that in fact an employee need not be permanent and stationary to return to work.
When Schermerhorn returned to see Fischer soon thereafter, Fischer told him that he would not clear him to return to work until Dr. Bierer authorized it. Fischer had no further contact with Dr. Bierer until December 2002.
Schermerhorn had further appointments with Dr. Sisto during April and May of 2002, then on June 5, 2002, went to a different physician, Dr. Joseph Condon, who gave him a release to return to work as of June 6, 2002. Dr. Condon recommended work restrictions of no lifting of more than ten pounds, no standing more than 15 minutes continuously per hour, and no running, lunging, or sharp turns. In his trial testimony, Schermerhorn explained that none of those restrictions would have prevented him from performing his job duties as an adapted PE teacher. A few days after receiving the release from Dr. Condon, Schermerhorn provided a copy to Dr. Bierer, but Dr. Bierers assistant informed him that Dr. Bierer did not want to see him again until he was permanent and stationary.
On August 7, 2002, Dr. Stephen Nagelberg, an orthopedic surgeon, became Schermerhorns primary treating physician. On that date, Dr. Nagelberg examined Schermerhorn and some of his medical records, considered Schermerhorns description of his work duties, and determined that he was not yet ready to return to work in any capacity. When Dr. Nagelberg saw Schermerhorn again on September 18, 2002, however, and after reviewing additional medical records and receiving more information about the requirements of Schermerhorns job, he determined that Schermerhorns condition had improved and that Schermerhorn was able to return to work, with restrictions of no running or jumping and limited bending, stooping, squatting, or heavy lifting. In his report, Dr. Nagelberg also noted that Schermerhorn was scheduled to see Dr. David R. Friedman, a psychiatrist.
Dr. Nagelberg gave Schermerhorn a signed "return-to-work certificate," listing Schermerhorns work restrictions, stating that Schermerhorn was "temporarily totally disabled for 8 weeks," and indicating that his next appointment was scheduled for November 13, 2002. In his trial testimony, Dr. Nagelberg explained that the "temporarily totally disabled" designation was meant to apply only if Schermerhorns employer could not provide "modified work" that would accommodate Schermerhorns restrictions: "Im simply indicating to the employer that in the event that theyre not going to provide him modified work, if modified work is not available, that he therefore will not be able to work, and he will therefore be temporarily totally disabled."
Schermerhorn provided copies of the return-to-work certificate to Fischer and Dr. Bierer. Fischer told Schermerhorn that the decision on returning him to work was Dr. Bierers to make, and he told Schermerhorn to meet again with Dr. Bierer, which Schermerhorn did. Schermerhorn told Dr. Bierer that he could do his job without any formal accommodation, but Dr. Bierer again told him that he did not want to see him until his condition was permanent and stationary.
On December 9, 2002, Schermerhorn again met with Fischer and discussed the possibility of returning to work with accommodations. Fischer sent Dr. Bierer a memorandum stating "I have accommodated Robert Schermerhorns itinerant teaching assignment by reducing his caseload of students while eliminating the number of schools he services." Fischer added, "Today, I would positively consider [Schermerhorns] ability to handle the job because his assignment is softer and his restrictions are not as severe as they were in May." He noted that "[a]t the elementary schools which [Schermerhorn] serves, he has access to assistants and classroom teachers if he needs assistance in any way," and that the adapted PE program "is not a high impact program." Fischer did not receive a response from Dr. Bierer and had no other contact with him regarding Schermerhorns work situation between December 2002 and March 2004. In January 2003, Schermerhorn again contacted Fischer, who said that he was waiting for Dr. Bierer to release Schermerhorn for work. Schermerhorn continued to contact Fischer periodically about returning to work thereafter.
During this period, a psychiatrist was treating Schermerhorn for depression, anxiety, sleep dysfunction, and sexual potency dysfunction. Schermerhorn took various medications and received counseling for these complaints. For a time, he was suicidal because he wanted to return to work but could not.
In May 2003, a private vocational rehabilitation counselor analyzed Schermerhorns job position and found that its requirements fit generally within the work restrictions imposed by Schermerhorns doctors. Fischer participated in the job analysis.
On September 23, 2003, regarding his workers compensation claim, Schermerhorn saw another orthopedic surgeon, Dr. Andrew L. Sew Hoy. Dr. Sew Hoy found Schermerhorns condition to be permanent and stationary and concluded, based upon his description of his job duties, that "it would appear probable that Mr. Schermerhorn is a qualified injured worker and vocational rehabilitation is appropriate." He determined that Schermerhorn required no further formal treatment. On February 17, 2004, Dr. Sew Hoy saw Schermerhorn again, and based upon the May 2003 job analysis, which indicated lower lifting requirements than Schermerhorn had indicated at the September 2003 appointment, Dr. Sew Hoy determined that "Schermerhorn is not a qualified injured worker and vocational rehabilitation is not indicated." Dr. Sew Hoy stated, "If the Job Analysis is correct, then Mr. Schermerhorn is able to perform the duties usual and customary of teacher, adapted physical education." Schermerhorn submitted Dr. Sew Hoys February 2004 report to Dr. Bierer.
On March 11, 2004, Schermerhorn met again with Dr. Bierer. On the basis of Schermerhorns physicians opinion that Schermerhorn could return to work with restrictions of no heavy lifting or carrying, no repetitive squatting, kneeling, or climbing, no running or jumping, and "no work on uneven terrain or unprotected heights," Dr. Bierer cleared Schermerhorn to return to work. Once released for work by Dr. Bierer, Schermerhorn met with LAUSD human resources specialist Colleen Mori, who discussed Schermerhorns return to work with LAUSDs coordinator for adapted PE, Cyndi Martinich, then told Schermerhorn that because he had work restrictions, he could not return to work without a clearance from the LAUSD Office of Risk Management and Insurance Services (ORMIS). On March 12, 2004, Martinich, who had authority to grant or deny reasonable accommodations, sent Schermerhorn a letter stating, "Based on the restrictions listed [in Dr. Bierers release], it may not be possible to accommodate your job responsibilities. These restrictions, in fact, interfere with the essential function of an Adapted Physical Education teacher." Martinich directed Schermerhorn to contact ORMIS regarding reasonable accommodations. Martinich spoke with Schermerhorn twice and told him that the uneven terrain restriction was the one she felt she could not accommodate.
On April 23, 2004, Schermerhorn filled out a reasonable accommodation form at ORMIS. On it, he requested neither a reasonable accommodation nor a medical exemption. Under "Statement of Disability or Medical Condition," he wrote, "I am not asking for any special accommodation." Under "Performance of Job Functions," he wrote, "I am able to perform all functions of my job based on the job analysis." Under "Specific Accommodation Sought," he wrote, "None." On May 28, 2004, Janice Sawyer, who worked on reasonable accommodations at ORMIS, informed Schermerhorn that he could return to work if he accepted a teaching position at a single location. Schermerhorn accepted. LAUSD allowed him to return to work at the beginning of the new school year in September 2004. In an internal LAUSD memorandum, Martinich acknowledged, "We did not particularly want [Schermerhorn] back but the attorneys involved felt it necessary. . . . Also note that the progressive discipline process will continue without interruption at his new work location." Martinich instructed Schermerhorns supervisors to document any deficiencies in his work performance.
On January 25, 2005, Schermerhorn filed an administrative complaint with the California Department of Fair Employment and Housing (DFEH), alleging that Martinich discriminated against him by failing to allow him to return to work before September 2004. On May 10, 2005, Schermerhorn filed a complaint in the Los Angeles County Superior Court alleging two causes of action against LAUSD: (1) disability discrimination in violation of Californias Fair Employment and Housing Act (FEHA), and (2) failure to reasonably accommodate in violation of FEHA. On October 10, 2006, the trial court denied LAUSDs motion for summary judgment on the two claims. On October 12, 2006, Schermerhorn filed a motion to amend the complaint to add two additional claims: (1) failure to engage in the interactive process and (2) failure to prevent discrimination in violation of FEHA. In early November 2006, shortly before trial, the court granted Schermerhorns motion. Schermerhorn later dismissed the failure to prevent discrimination claim, leaving three causes of action in his amended complaint.
Statements in this paragraph regarding the pretrial procedural history of this case are drawn from the parties briefs, because the record before us does not contain the complaint, answer, or any court filing predating the entry of judgment on December 15, 2006. Schermerhorns complaint to the DFEH appears among the trial court exhibits, but there is no indication that it was admitted into evidence.
The jury trial began on November 7, 2006. Schermerhorn, Fischer, Martinich, Dr. Nagelberg, and Dr. Bierer all testified, along with the economist who calculated Schermerhorns lost earnings and benefits, Schermerhorns sister, an official from the DFEH, and two other LAUSD officials. Schermerhorn also presented expert opinion testimony from a vocational rehabilitation counselor regarding terminology relating to a patients condition in the workers compensation context, and from Sande Buhai, a law professor and expert on disability law who described the custom and practice of employers in discharging their duty under FEHA to engage in the interactive process. Schermerhorn testified that as a result of the financial straits caused by his unemployment, he was forced to sell real and personal property in an effort to avoid bankruptcy, then ultimately had to declare bankruptcy anyway. He and his family also lost their health insurance and could not afford medical care.
On November 30, 2006, the jury found by special verdict that Schermerhorn had an actual or perceived disability; LAUSD had been aware of a need to discuss accommodation of Schermerhorns disability; LAUSD failed to participate in good faith in the interactive process to accommodate Schermerhorns disability; and that failure to engage in the interactive process was a substantial factor in causing harm to Schermerhorn. The jury found past economic damages of $189,528, future economic losses of $40,778, past noneconomic losses of $100,000, and future noneconomic losses of $50,000, for a total recovery of $380,306. The jury deadlocked on Schermerhorns other two claims, which Schermerhorn dismissed.
Schermerhorn filed a proposed judgment on December 5, 2006. On December 15, 2006, the court held a hearing on the proposed judgment and entered judgment. LAUSD did not attend the hearing and filed no objections to the proposed judgment until after the hearing.
This portion of the procedural history is drawn from a declaration by Schermerhorns counsel that was submitted in opposition to one of LAUSDs posttrial motions. LAUSD provides no contrary evidence or argument. The record on appeal contains neither the transcript of the hearing nor the courts minute order directing entry of judgment.
On December 29, 2006, LAUSD filed a motion for a new trial, arguing that the evidence was insufficient to show failure to engage in the interactive process, the damages were excessive and unsupported by the evidence, allowing Buhai to testify was prejudicial error, and the jurys finding of failure to engage in the interactive process without also finding failure to accommodate was contrary to FEHA jurisprudence. LAUSD filed a motion for judgment notwithstanding the verdict (JNOV) based upon similar grounds. In its new trial motion, LAUSD also argued that the workers compensation benefits that Schermerhorn had received should be offset against his recovery in this case.
On February 8, 2007, the court denied LAUSDs new trial and JNOV motions, granted Schermerhorns motion for attorneys fees, and partly granted LAUSDs motion to tax costs. The court concluded that it no longer had jurisdiction to consider the offset issue, which LAUSD should have raised before judgment was entered.
On February 15, 2007, the court awarded Schermerhorn $21,836 for costs and $568,108 for attorneys fees. LAUSD filed an ex parte application to offset Schermerhorns award of past economic damages with the amount of workers compensation benefits he received. The court denied the application but allowed LAUSD to resubmit its request for offset in the form of a noticed motion, which LAUSD did. The court then denied the motion and awarded Schermerhorn $1,500 in additional attorneys fees. LAUSD timely appealed from the judgment and the rulings on various posttrial motions.
Again, because of gaps in the record on appeal, this portion of the procedural history is drawn from Schermerhorns counsels declaration. (See footnote 3, ante.)
DISCUSSION
I. Standard of Review
In general, we review the trial courts conclusions of law de novo, and we review the jurys findings of fact under the substantial evidence standard. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) The same standards apply to review of the denial of a motion for JNOV. (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 49; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 718-719.) In applying the substantial evidence standard, we "must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.) We review the trial courts ruling on a motion for new trial for abuse of discretion. (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1800.)
II. Failure to Engage in the Interactive Process under FEHA
Section 12940, subdivision (n), makes it unlawful for an employer to "fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition." "An employee may file a civil action based on the employers failure to engage in the interactive process." (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 243.)
LAUSD argues on numerous grounds that the judgment on Schermerhorns claim for failure to engage in the interactive process must be reversed. None of LAUSDs arguments persuades us.
A. Schermerhorns Allegedly "Premature" Request to Return to Work
LAUSD contends that Schermerhorns claim for failure to engage in the interactive process is based on requests to return to work before his doctors had cleared him to return. On that basis, LAUSD asserts that this case presents "[t]he novel issue [of] whether a premature request to return to work, without requesting any accommodations, without being cleared to return to work from a doctor, triggers an affirmative duty to engage in the interactive process." LAUSDs argument mischaracterizes the record, and this case consequently does not present the "novel" issue that LAUSD describes.
In the first week of March 2002, Schermerhorn provided Fischer with a form signed by Dr. Sisto that released Schermerhorn to return to work as of April 1, 2002, subject to listed work restrictions. When Schermerhorn gave Fischer the form, he told Fischer, "Im ready to return to work. I want to return to work." Thus, as of that meeting, LAUSD had notice of (1) Schermerhorns medical release to return to work, (2) his desire to return to work, and (3) his disability, as expressed in the listed work restrictions. Nothing more was required to trigger LAUSDs duty to offer a reasonable accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 946-951.) The duty to engage in the interactive process was therefore triggered as well, because "[t]he interactive process determines which accommodations are required." (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 425.) LAUSD cites no authority to the contrary.
Dr. Sistos release was prospective, but LAUSD does not contend that such a prospective release fails to trigger the duty to engage in the interactive process. Rather, LAUSD contends (incorrectly) that Schermerhorn had not been released at all. We also note that in addition to Dr. Sisto, Dr. Condon saw Schermerhorn on June 5, 2002, and released him to return to work as of June 6, 2002, and Dr. Nagelberg released Schermerhorn to return to work as of September 18, 2002. LAUSD did not allow Schermerhorn to return to work until May 2004, when it offered him a position for the school year beginning in September 2004.
B. Schermerhorn "Never Requested an Accommodation"
LAUSD argues that Schermerhorn "never requested an accommodation," so the duty to engage in the interactive process never arose. We disagree. For the reasons explained in Part II.A., ante, LAUSDs duty to engage in the interactive process did arise in March 2002.
In support of its argument for a contrary conclusion, LAUSD cites a portion of Schermerhorns deposition testimony that was read into the record at trial, in which Schermerhorn answered "No" to the question "Did you ever have a discussion regarding the reasonable accommodation with Mr. Fischer?" On the same page of the reporters transcript, however, LAUSDs counsel asked Schermerhorn: "Now, your immediate supervisor Jay Fischer, you never had a conversation with him about a reasonable accommodation, did you?" Schermerhorn responded: "Yes, I did; not in those specific terms, not in that specific phrase, but we talked about accommodation. We talked about modifying my assignment to accommodate me." Elsewhere in his trial testimony, Schermerhorn described his repeated attempts, beginning in March 2002, to persuade Fischer that his work restrictions could be accommodated. Resolving all conflicts in the evidence and drawing all reasonable inferences in favor of Schermerhorn, we must conclude that he did repeatedly request accommodation beginning in March 2002.
In further support of its argument, LAUSD cites the form that Schermerhorn filled out in April 2004, on which Schermerhorn expressly declined to request an accommodation. The argument still fails. For the reasons we have described, LAUSDs duty to engage in the interactive process arose in March 2002. Schermerhorns abandonment in April 2004 of his request for accommodation has no tendency to prove that LAUSD did not violate its duty during the intervening two years.
C. LAUSDs Interaction with Schermerhorn
LAUSD maintains that Schermerhorns own testimony demonstrates that LAUSD interacted with him, citing Schermerhorns testimony regarding (1) his conversations with Fischer late in 2002, (2) Fischers participation in the job analysis of Schermerhorns position in May 2003, and (3) Schermerhorns meeting with Dr. Bierer in March 2004. LAUSDs argument fails because section 12940, subdivision (n), requires not just interaction but timely, good faith engagement in an interactive process "to determine effective reasonable accommodations, if any." When viewed in light of the evidence and reasonable inferences supporting the judgment, the evidence cited by LAUSD does not show either timely or good faith engagement.
LAUSDs duty to engage in the interactive process arose in March 2002. In that same month, Dr. Bierer told Schermerhorn that he would not be permitted to return to work until he was "permanent and stationary." In August 2002, Fischer told Schermerhorn that only Dr. Bierer could clear him to return to work and that the decision was out of Fischers hands. Dr. Bierer did not clear Schermerhorn to return until March 2004. Given that background, Schermerhorns interactions with Fischer in December 2002 and January 2003 (which Schermerhorn initiated) do not show timely, good faith engagement in the interactive process by LAUSD. Rather, drawing all reasonable inferences in favor of the judgment, they show only that Schermerhorn continued to contact Fischer in order to try to return to work and that Fischer continued to refer the matter to Dr. Bierer, who continued to prohibit Schermerhorn from returning to work on the basis of an inapplicable standard drawn from workers compensation law. Fischers participation in the job analysis in May 2003 was similarly ineffectual. And Schermerhorns meeting with Dr. Bierer in March 2004 has no tendency to prove that LAUSD did not violate its duty to engage in the interactive process during the two years since the duty arose in March 2002.
For all of these reasons, we reject LAUSDs argument that the cited interactions demonstrate that Schermerhorns claim for failure to engage in the interactive process lacks merit.
D. Failure to Provide the Psychiatric Report
LAUSD further maintains that Schermerhorn, not LAUSD, ceased participation in the interactive process regarding reasonable accommodations, because he did not provide Dr. Bierer with a psychiatric report from Dr. Friedman as Dr. Bierer requested. In a letter to Schermerhorn dated November 21, 2002, Dr. Bierer indicated again that he would not return Schermerhorn to work until he had attained permanent and stationary status, and he further added, "Please obtain a final report from Dr. Nagelberg and a final report from the psychiatrist who evaluated you on November 7th [Dr. Friedman] and make an appointment to see me for consideration of your return to work status." LAUSD contends that because Dr. Bierer had unilateral authority to return Schermerhorn to work, but Schermerhorn did not provide the psychiatric form that Dr. Bierer requested, LAUSD had no further obligation to engage in interactive dialogue with Schermerhorn. LAUSD further asserts that Schermerhorn "had full knowledge that he would be reinstated once he provided the [psychiatric report]."
LAUSDs argument, however, disregards the evidence and reasonable inferences supporting the judgment, which show that the psychiatric form did not have the significance LAUSD claims for it. The record indicates that the psychiatric report was irrelevant to Schermerhorns return to work as long as Dr. Bierer was determined not to return him to work until his doctor designated him permanent and stationary. The record thus supports the conclusion that LAUSD would not have reinstated Schermerhorn even if he had provided the psychiatric report. It also is reasonable to infer that Schermerhorn could not provide the "final" reports Dr. Bierer demanded while his treatment was ongoing. Moreover, the evidence shows that Schermerhorn persisted in seeking interactive dialogue with LAUSD throughout the period from 2002 to 2004.
For all of these reasons, LAUSDs argument fails. Schermerhorns failure to provide the psychiatric report did not constitute withdrawal from the interactive process, and the record shows that Schermerhorn continued to try to engage in an interactive process with LAUSD from 2002 through 2004.
E. Possibility of Accommodation
LAUSD contends that Schermerhorn cannot prevail on his claim for failure to engage in the interactive process without first establishing that LAUSD could have reasonably accommodated him. Case law, however, holds otherwise. (Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at pp. 424-425; see also § 12940, subd. (n) [imposing a duty "to engage in a timely, good faith, interactive process . . . to determine effective reasonable accommodations, if any" (italics added)].)
F. "Short Leave of Absence"
LAUSD argues that it cannot be liable for failure to engage in the interactive process because LAUSD did reasonably accommodate Schermerhorn, so no interactive process was necessary. LAUSD bases this argument on Tannlund-McCoy v. Golden Gate Bridge, Highway & Transportation Dist. (N.D. Cal. July 30, 2003, No. C 02-02624 WHA 41a) 2003 U.S. Dist. LEXIS 13619, a case in which the court determined that the defendant reasonably accommodated the plaintiff by giving her a "short leave of absence" (the plaintiff "lost only seven weeks of work") and holding her job open for her. (Id. at pp. *14-*16.) In contrast, Schermerhorn tried for two years to return to work, throughout that period LAUSD refused (on an admittedly invalid basis) to allow him to return despite his doctors releases, and LAUSD did not hold his job open for him. LAUSD cites no authority for the proposition that such treatment of an employee constitutes reasonable accommodation.
G. Statute of Limitations and Exhaustion of Administrative Remedies
LAUSD contends that the statute of limitations and Schermerhorns failure to exhaust his administrative remedies bar his interactive process claim. In support of that contention, LAUSD argues that (1) some of the conduct underlying the claim occurred more than one year before Schermerhorn filed his DFEH complaint, and (2) the DFEH complaint did not include a claim for failure to engage in the interactive process. We disagree.
First, the statute of limitations is an affirmative defense and hence is waived if not raised in the answer. (Philbrick v. Huff (1976) 60 Cal.App.3d 633, 642.) The record on appeal does not contain LAUSDs answer, so we cannot determine whether LAUSD preserved its statute of limitations defense. Because the appellant bears the burden of providing an adequate record (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127), LAUSDs argument fails. In addition, Schermerhorn argues that because LAUSDs failure to engage in the interactive process was a continuing violation that began in March 2002 and did not end until mid-2004, Schermerhorns January 2005 complaint to the DFEH was timely. LAUSDs reply brief contains no response to Schermerhorns argument, and we conclude that the argument is sound. LAUSDs unlawful actions were sufficiently similar in kind, occurred with reasonable frequency, and had not acquired a degree of permanence before mid-2004 (indeed, in mid-2004 Schermerhorn finally succeeded in persuading LAUSD to allow him to return to work). (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
Second, Schermerhorn did exhaust his administrative remedies because his DFEH complaint did adequately present his claim for failure to engage in the interactive process. For purposes of the administrative exhaustion requirement, the scope of the DFEH complaint is determined by the scope of the DFEH investigation that could reasonably be expected to grow out of the complaint. (Sandhu v. Lockheed Missiles & Space Co. (1994) 26 Cal.App.4th 846, 859.) Accordingly, the "`crucial element" in the DFEH complaint is its "`factual statement," and merely "[c]hecking the wrong box" is a "`technical defect" that is not dispositive. (Id. at pp. 858-859, italics omitted, quoting Sanchez v. Standard Brands, Inc. (5th Cir. 1970) 431 F.2d 455, 462.) Schermerhorn wrote on his DFEH complaint, "See attached letter from my attorney." In the attached letter, Schermerhorns attorney explained that "[t]hroughout [Schermerhorns] efforts to return to work, [LAUSD] did not meet and confer with Mr. Schermerhorn about reasonable accommodation." An investigation of LAUSDs failure to engage in the interactive process could therefore be reasonably expected to grow out of the complaint.
III. Expert Testimony
LAUSD also maintains that the trial court erred prejudicially by admitting certain testimony of Buhai. We disagree. Because "any reference to a matter in the record" must be supported by a proper citation to the record (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we "need not consider" such matters in the absence of an appropriate citation (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16), we will generally confine our analysis to the specific passages in the reporters transcript that LAUSD cites.
First, LAUSD cites certain testimony elicited by LAUSDs counsel on voir dire of Buhai when LAUSD objected to her qualifications as an expert. Under the "invited error" doctrine, LAUSD may not complain about testimony that LAUSD itself introduced. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
On appeal, LAUSD does not challenge the trial courts determination that Buhai qualified as an expert.
Second, LAUSD contends that "after the Court indicated that Ms. Buhai was not competent to discuss workers compensation analysis in returning a person to work, she was allowed to indicate that workers compensation has no impact on an employers duty to engage in the interactive process." LAUSD did not object to the cited testimony at trial, so LAUSD cannot challenge it on appeal. (Evid. Code, § 353.) Further, the argument is based on a misrepresentation of the courts ruling. The court did not rule that Buhai "was not competent to discuss workers compensation analysis in returning a person to work." Rather, when the court qualified Buhai as an expert "with respect to custom and practices of employers in complying with FEHA," the court deferred a determination of Buhais expert qualifications concerning workers compensation until later, depending upon the questions asked. Thus, the courts admission (without objection) of the cited testimony concerning workers compensation was consistent with the courts prior ruling on Buhais qualifications.
Third, LAUSD contends that a portion of Buhais testimony "improperly invaded the jurys exclusive province as the ultimate trier of fact." LAUSD did not raise that objection in the trial court, so it cannot do so on appeal. (Evid. Code, § 353.) In any event, an experts opinion "is not objectionable because it embraces the ultimate issue to be decided by the trier of fact." (Evid. Code, § 805.)
Fourth, LAUSD contends that Buhais testimony improperly "invaded the judges sole province in instructing on the law." LAUSD provides no citation to the record to support this argument, so the point is waived. (City of Lincoln v. Barringer, supra, 102 Cal.App.4th at p. 1239 & fn. 16.) In addition, we note that when the trial court qualified Buhai as an expert, the court told the jury that "the witness is an expert in the law of disabilities discrimination but it is my job to tell you what the law is. We dont have witnesses tell you that." We must presume the jury followed the courts instructions. (People v. Houston (2005) 130 Cal.App.4th 279, 308.)
IV. Workers Compensation Benefits as an Offset
LAUSD argues that the trial court erred by failing to offset the workers compensation benefits Schermerhorn received against the damages award for lost wages and benefits, improperly allowing Schermerhorn a double recovery. LAUSD included this argument in its motion for new trial (and in a separate posttrial motion), but the trial court rejected it because LAUSD had not raised it before entry of judgment: "I dont think its appropriate to raise it in a motion for a new trial because there was no error by the court in refusing to offset. Nobody asked me to do it prejudgment." On appeal, LAUSD challenges neither the trial courts determination that LAUSD failed to raise the offset issue until after entry of judgment nor the courts conclusion that LAUSD therefore waived the issue. LAUSD consequently has failed to carry its burden of showing that the trial court erred. (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971 ["The burden of affirmatively demonstrating error is on the appellant"].)
V. Trial Courts Attorneys fees Award
LAUSD maintains that the trial court should have reduced Schermerhorns attorneys fees pro rata because he prevailed on only one of his three causes of action. We disagree.
Section 12965, subdivision (b), provides, in pertinent part, "[T]he court, in its discretion, may award to the prevailing party reasonable attorneys fees and costs, including expert witness fees[.]" "A trial courts award of attorney fees and costs under this section is subject to an abuse of discretion standard." (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1387.) Because of strong state and national policies supporting plaintiffs access to the courts to prosecute meritorious antidiscrimination suits, "a prevailing plaintiff `"should ordinarily recover an attorneys fee unless special circumstances would render such an award unjust."" (Ibid., quoting Christianburg Garment Co. v. EEOC (1978) 434 U.S. 412, 416-417.)
LAUSD cites various authorities holding that where plaintiffs achieve only limited success in litigation, courts should limit the plaintiffs award of attorneys fees accordingly. (See Hensley v. Eckerhart (1983) 461 U.S. 424, 440; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096; McGinnis v. Kentucky Fried Chicken of California (9th Cir. 1994) 51 F.3d 805, 810.) Schermerhorn, however, achieved a full recovery on his claim for failure to participate in the interactive process. His lack of success on the two dismissed claims does not diminish the success he did achieve. As LAUSD quotes the United States Supreme Court, "Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee." (Hensley v. Eckerhart, supra, 461 U.S. at p. 435.) The trial court apparently believed, and we agree, that Schermerhorns attorneys obtained an excellent result. (Cf. id. at pp. 430-431.) Aside from its argument that Schermerhorn had only limited success in litigation because he prevailed on only one of three causes of action, LAUSD does not challenge the trial courts computation of Schermerhorns attorneys fees. For all of these reasons, we find no abuse of discretion in the courts award of attorneys fees.
VI. Attorneys fees on Appeal
In his respondents brief, Schermerhorn requests an award of his attorneys fees on appeal. LAUSD does not address the request in its reply brief. "Statutory authorization for the recovery of attorney fees incurred in trial court proceedings necessarily includes attorney fees incurred on appeal unless the statute specifically provides otherwise." (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 557.) Section 12965, subdivision (b), authorizes the award of attorneys fees and does not exclude an award of appellate fees. We grant Schermerhorns request.
DISPOSITION
The judgment and orders are affirmed. Schermerhorn shall recover his costs and attorneys fees on appeal, in amounts to be determined by the trial court.
We concur:
MALLANO, P. J.
WEISBERG, J.