Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CV022001
NICHOLSON, J.
Plaintiff Bijan Tabaie’s employer, defendant Stockton Unified School District (the District), refused to allow him to continue working after he was unable to obtain a complete medical release from a work-related injury and he had not requested reasonable accommodations, even though he was able to perform his normal job duties without the aid of accommodations. Plaintiff sued, claiming employment discrimination based on his disability. The jury found for the District.
Plaintiff claims the trial court erred when it (1) specially instructed the jury at the District’s request to make a legal decision, namely, that the District had rebutted a presumption of discrimination if the jury determined the District acted pursuant to a legitimate, nondiscriminatory business purpose, and the court provided a special verdict question directing the jury to find for the District if it found the existence of such a business purpose; and (2) denied plaintiff’s motion for a directed verdict.
We agree with plaintiff that the court committed prejudicial error by giving the special instruction and special verdict question, and it erred by not granting a directed verdict in plaintiff’s favor. We reverse the judgment and remand with directions to grant plaintiff’s motion for a directed verdict.
FACTS
1. District forbids plaintiff from working
The District employed plaintiff beginning in 1986 as a school psychologist. In this position, plaintiff assessed students to determine their eligibility for special education programs, and he assisted in preparing individual educational plans for those students.
On September 5, 2001, some 15 years into his employment with the District, plaintiff injured his back at work while moving a heavy filing cabinet. His supervisor, Marjorie Hogue, directed him to fill out a worker’s compensation claim. The District’s risk management office instructed him to be checked at Dameron Hospital.
A hospital physician diagnosed plaintiff as having a lumbar/lumbosacral strain. The doctor released plaintiff back to work, but he imposed the following restrictions on plaintiff’s duties: plaintiff was not to lift or carry items greater than 10 to 15 pounds; he was not to lift, twist, bend or stoop at his waist frequently; and he was not to sit for prolonged periods of time.
The District placed plaintiff on modified duty as a result of the doctor’s restrictions. The District’s modified duty policy provides an injured employee full pay and benefits for up to 60 working days while the employee stays on the job and recovers from a temporary injury. At the end of the 60-day period, in order to continue working, the employee must either provide a complete medical release or apply to the District’s human resources department for reasonable accommodations if the injury caused permanent disability.
Through the remainder of September, all of October, and the first half of November, plaintiff worked under the modified duty policy. However, during this time, he performed all of his normal job duties. Indeed, plaintiff testified that during this time, no one from the District actually modified his job duties or informed him he had been placed on any sort of modified duty program. Hogue testified that as plaintiff’s supervisor, she called the principal at the school where plaintiff was working to discuss the possibility of needing to make arrangements for plaintiff. However, she did not consider plaintiff to be disabled.
Annually, plaintiff and all District employees received a packet of information about the District’s various employment policies. The packet included information about the District’s nondiscrimination policy and its policy for providing reasonable accommodations for employees who need them. The packet did not, however, include the modified duty policy or mention the requirement to request reasonable accommodations in order to continue working after the 60-day modified duty term expired.
On November 15, 2001, plaintiff received a memo from the District’s risk management department informing him he would not be allowed to work after December 3, 2001, the end of the 60-day period, unless he obtained a doctor’s release stating he was able to work without any restrictions. The memo read: “District policy allows employees to work a maximum of 60 days modified duty per injury. [¶] According to our calculation, your sixty days will end on 12/3/01. You may work through this date only. After this date, you will need to bring in a doctor’s release that states you are able to work without restrictions. You may not return to work until such release is provided to the Risk Management office.”
The November 15 memorandum said nothing about the requirement to request reasonable accommodations in order to continue working after December 3.
Hogue, plaintiff’s supervisor, understood that even though plaintiff was continuing to perform his regular job duties, he would not be allowed to continue working unless he provided a complete medical release. Although Hogue had been directed to discuss the November 15 memorandum with plaintiff before the modified duty ending date, she did not discuss the matter with him. She also did not know if another of plaintiff’s supervisors discussed it with him.
As mentioned, plaintiff had two options under the modified duty policy in order to continue working: obtain a complete medical release from his doctor or apply for reasonable accommodations. Plaintiff took neither option, and thus was no longer allowed to work for the District after December 3, 2001.
Plaintiff was unable to obtain a complete medical release listing no restrictions because his doctor continued to impose the same limited restrictions on his work. Had the doctor provided a release that listed no restrictions, the District would have allowed plaintiff to continue working.
Plaintiff also did not request reasonable accommodations. The District thus never discussed whether plaintiff needed reasonable accommodations. However, the trial court determined on the District’s earlier motion for summary judgment it was undisputed that plaintiff was able to perform his essential job functions on December 3, 2001, the last day the District allowed him to work, without any accommodations. There also is no evidence in the record that plaintiff was specifically informed by the District about the policy requirement of applying for reasonable accommodations prior to December 3, 2001, in order to continue working after the modified duty period expired.
The District’s risk manager, William Shook, testified that an employee who does not require any modified duties but still has some physical restrictions imposed by a doctor will not be allowed to work after the expiration of the 60-day period. If the restrictions must continue beyond the 60-days, the employee can request reasonable accommodations, but the 60-day period is a temporary period, and Shook would not second-guess a doctor.
Shook admitted he did not consider whether plaintiff’s restrictions prevented him from performing his normal job duties before ordering plaintiff to cease working. Shook testified, “It normally isn’t a consideration because if the 60 days is exhausted, that’s the end of the temporary period, beyond that they have other remedies.” Asked how he could interpret the doctor’s release with modifications to mean plaintiff should not work after 60 days, Shook replied: “It wasn’t a factor.... [¶] The 60 day time period is what I make these decisions on. They get 60 days to recover. Beyond that there’s other remedies they could pursue, because it’s indicated that these things will continue beyond it. This was a temporary period.”
Shook explained the 60-day cut-off served at least two business purposes. First, the District could not provide its services in the long-term with an employee who remained injured and presumably would not or could not be accommodated. Second, the District did not want to risk the employee reinjuring himself if he returned to the job while still under doctor’s restrictions. Shook stated: “Like I say, as a non-medical person, I’m not going to second guess a physician’s recommendation and return them back to a job where they may injure themselves again.”
2. The District’s and plaintiff’s subsequent actions.
Although the District prohibited plaintiff from working, it did not terminate his employment. To the contrary, it continued to compensate plaintiff for a period of time even though plaintiff was not working. Pursuant to its policies, the District paid plaintiff his full salary for the next 60-day period through a combination of two-thirds workers’ compensation temporary disability payments and the District making up the balance. The District paid plaintiff these payments from December 4, 2001, through March 14, 2002.
Beginning March 15, 2002, the District continued to pay plaintiff his full salary under a policy that used plaintiff’s accrued sick leave to make up the remaining balance after using temporary disability benefits. Plaintiff received his full salary under this plan through June 2, 2002.
Although he was not allowed to work, he signed contracts of employment with the District for the 2002-2003 and 2003-2004 school years. He was not paid salary for those years, but he did continue to accrue sick leave. He stopped receiving temporary disability benefits on May 11, 2004.
Plaintiff met with Shook in December 2002, one year after his last day of work, to inquire about the modified duty policy and why he could not return to work. Shook testified he gave plaintiff a “second” copy of the modified duty policy and a copy of the District’s policy on reasonable accommodations. This was the only time Shook met with plaintiff face-to-face to discuss his situation. The record does not disclose when Shook first gave plaintiff a copy of the modified duty policy.
Meanwhile, in February 2002, plaintiff informed the District he had changed his treating physician. His new physician was chiropractor David Y. Pessaran. In a report dated March 22, 2002, Dr. Pessaran changed plaintiff’s work status and precluded plaintiff from working at all. This no-work restriction continued for almost two years, up through March 1, 2004.
In September 2002, plaintiff applied for retirement disability benefits through the California State Teachers’ Retirement System (CalSTRS). He claimed his injury prevented him from sitting for extended periods of time, making it “impossible” for him to assess students, attend meetings and write reports, all important functions of his job. CalSTRS granted his request and began paying him disability on May 12, 2004. As of trial, plaintiff had received approximately $160,000 in disability retirement benefits. Those benefits continued until January 2009.
Upon learning that plaintiff’s application to CalSTRS had been accepted, the District placed plaintiff on what is called a 39-month reemployment list. This gave plaintiff a right to return to employment during that time period if he gave the District a release to return to work from his physician and there was a vacancy for his position.
Plaintiff settled his workers’ compensation claim in February 2004. Plaintiff received approximately $50,000 in workers’ compensation benefits.
PROCEDURAL HISTORY
The state Department of Fair Employment and Housing issued plaintiff a right-to-sue letter in November 2002. Plaintiff filed a claim with the District in March 2003. The District denied the claim the following month.
Plaintiff filed this action in September 2003. He alleged causes of action under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq. (FEHA)) for physical disability discrimination (§ 12940, subd. (a)), failure to make reasonable accommodations (§ 12940, subd. (m)), and failure to engage in a good faith, interactive process to determine reasonable accommodations in response to a request for accommodations by the employee (§ 12940, subd. (n)).
Subsequent undesignated section references are to the Government Code.
The District moved for summary judgment/summary adjudication. The court denied the motion as to the discrimination claim. However, it granted the motion as to both of the reasonable accommodation causes of action, determining it was “undisputed that plaintiff was able to perform the essential functions of his job without accommodation. [Citation.] Since no accommodation was needed or requested, [the District] cannot be held liable for failure to accommodate or for failure to engage in the inter-active process.”
Later, the District again moved for summary judgment, this time asserting that plaintiff was judicially estopped from claiming discrimination because he had admitted in his workers’ compensation action and in his CalSTRS application that he was completely disabled and unable to work. The trial court denied this motion, ruling that plaintiff’s subsequent claims of total disability did not establish he was unable to perform his job on December 3, 2001, the date when the 60-day modified duty period expired and he was no longer allowed to work.
At trial following the District’s case, plaintiff moved for a directed verdict. He claimed the District had failed to present any evidence showing it had prevented him from working for any reason other than his disability. The trial court denied the motion, ruling there was sufficient evidence for the case to go to a jury.
Over plaintiff’s objection, the court gave a special jury instruction requested by the District that stated a legitimate business purpose negated a presumption of discrimination. The court also included in the special verdict form a question that instructed the jury to end its deliberations and find for the District if it determined the District had a legitimate, nondiscriminatory business reason for its adverse employment action regarding the plaintiff.
The jury returned a verdict in favor of the District. Although it determined plaintiff’s physical condition was a motivating factor for the adverse employment action, it also found the District had a legitimate, nondiscriminatory business reason for taking its action.
Plaintiff appeals and challenges the special jury instruction and the special verdict question, as well as the trial court’s denial of his motion for directed verdict.
DISCUSSION
I
Special Jury Instruction and Verdict Question
Plaintiff claims the trial court erred when it submitted the special instruction to the jury along with the question on the verdict form regarding the effect of a nondiscriminatory business purpose. The instruction was requested by the District at trial as an affirmative defense, but plaintiff argues no such affirmative defense exists against FEHA discrimination claims when the case is given to a jury. He also claims the instruction is based on a burden-shifting test commonly used in discrimination actions that does not apply if the action goes to a jury trial.
In response to plaintiff’s argument, the District now claims the existence of a nondiscriminatory business purpose is not an affirmative defense but rather is relevant on the issue of liability. It claims the existence of a nondiscriminatory business purpose can be used at trial “for testing whether plaintiff has proved discrimination.”
We agree with plaintiff. The special instruction wrongly required the jury to decide issues of law and to engage in a burden-shifting analysis that is not to be performed by a jury at trial. Moreover, while evidence of a nondiscriminatory business purpose for taking adverse employment action is relevant at trial, it is not by itself dispositive, as it was treated here by the special verdict question.
A. Additional background information
To instruct on the elements of plaintiff’s discrimination claim, the trial court used CACI No. 2540 and the special jury instruction requested by the District. First, using CACI No. 2540, it instructed the jury that for plaintiff to establish his claim, he had to prove the following:
“1. That the Stockton Unified School District was an employer.
“2. That Bijan Tabaie was an employee of the Stockton Unified School District.
“3. That the Stockton Unified School District knew or thought Bijan Tabaie had a physical condition that limited a major life activity;
“4. That the Stockton Unified School District discharged Bijan Tabaie;
“5. That Bijan Tabaie’s physical condition was a motivating reason for the discharge, or [¶] [t]hat the Stockton Unified School District’s belief that Bijan Tabaie had a physical condition was a motivating reason for the discharge.
“6. That Bijan Tabaie was harmed; and
“7. That the Stockton Unified School District’s conduct was a substantial factor in causing Bijan Tabaie’s harm.”
Next, the court gave the jury the special instruction requested by the District, designated as special instruction No. 1, regarding a nondiscriminatory business purpose. The instruction read: “If an employer presents evidence of a legitimate, non-discriminatory business purpose for an adverse employment action, such evidence negates a presumption of discrimination.” The court did not explain or define a “presumption of discrimination.”
The court also included in the special verdict form a question that sought a response to the special instruction. The question, the fifth on the form, read: “Did the defendant have a legitimate, non-discriminatory business reason for its adverse employment action regarding the plaintiff? [¶]... [¶] If you answered ‘Yes,’ stop here....”
Using the special verdict form, the jury determined the following: (1) plaintiff suffered from a physical condition that limited a major life activity; (2) the District knew of or perceived that plaintiff had a physical condition that limited a major life activity; (3) plaintiff was subjected to an adverse employment action by the District based on his physical condition; (4) plaintiff’s physical condition was a motivating factor for the adverse employment action; but (5) the District had a legitimate, nondiscriminatory business reasons for its adverse employment action against plaintiff.
Because the jury determined the District had a nondiscriminatory reason for refusing to let plaintiff work, the jury did not reach the question of whether the District’s conduct was a substantial factor in causing harm to plaintiff.
B. Analysis
In general, FEHA prohibits the District from taking an adverse employment action against an employee because of his physical disability. (§ 12940, subd. (a); Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373 (Horsford).) For purposes of this appeal, there is no dispute that plaintiff’s back injury constituted a physical disability covered under FEHA, and that the District’s determination not to allow plaintiff to work constituted an adverse employment action for purposes of FEHA.
FEHA provides two exceptions to this general rule, neither of which applies here. An employer may take an adverse employment action against a disabled employee because of the employee’s disability where the employee, even with reasonable accommodations, is either unable to perform his essential duties, or he cannot perform his essential duties in a manner that would not endanger his or others’ health or safety. (§ 12940, subd. (a)(1).) The District did not claim it prevented plaintiff from returning to work on either of these grounds.
To win his claim, plaintiff had to show the District prevented him from working “because of” his disability. Plaintiff had the burden of proving, by a preponderance of the evidence, that his physical disability was a “substantial factor” in the District’s decision not to allow him to work, or, stated somewhat differently, that the District’s action against him was “motivated in substantial part” by reason of his disability. (See Horsford, supra, 132 Cal.App.4th at p. 375.)
Claims of intentional discrimination, such as plaintiff’s, can be proved using either direct evidence or circumstantial evidence. (See generally Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2008) ¶ 7:357 et seq., p. 7-64 et seq.) “‘Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.’” (Godwin v. Hunt Wesson, Inc. (9th Cir. 1998) 150 F.3d 1217, 1221, brackets in original.) For example, in Hoffman v. Caterpillar, Inc. (7th Cir. 2001) 256 F.3d 568 (Hoffman), a supervisor’s statement that he denied an employee certain training because she had only one hand was direct evidence of discriminatory intent in violation of the Americans With Disabilities Act (42 U.S.C. § 12101 et seq.). (Id. at pp. 573-574, 576.)
Because of the similarity between FEHA and federal employment discrimination laws, California courts look to pertinent federal precedent when applying FEHA. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).)
The other and more common method of proving intentional discrimination, using circumstantial evidence, allows a plaintiff to raise an inference of discrimination even in the absence of direct evidence. (Hoffman, supra, 256 F.3d at p. 574.) This method involves analyzing claims under an allocation of burdens of production and proof known as the McDonnell Douglas analysis. (McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668] (McDonnell Douglas).) The special instruction and jury verdict question at issue in this case were derived from the McDonnell Douglas test.
Under this analysis, the plaintiff first must establish a prima facie case of discrimination -- a de minimis showing. If he does, the burden of production shifts to the employer to respond with a legitimate, nondiscriminatory reason for its action. If the employer meets this burden, the presumption of discrimination created by plaintiff’s prima facie case disappears, leaving the plaintiff with the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against him. He can do this by proving the employer’s articulated reason was a “pretext” or cover-up for unlawful discrimination. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142-143 [147 L.Ed.2d 105, 116-117]; McDonnell Douglas, supra, 411 U.S. at pp. 802-804; Guz, supra, 24 Cal.4th at pp. 354-356; Chin et al., Cal. Practice Guide: Employment Litigation, supra, § 7:390 et seq., p. 7-69 et seq.)
The McDonnell Douglas analysis is not appropriate for use as a jury instruction. The McDonnell Douglas framework concerns burden of production rules, and was designed primarily as a procedural mechanism to facilitate the orderly presentation of circumstantial evidence of discrimination and to assist the court in determining “whether the litigants have created an issue of fact to be decided by the jury.” (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 255, fn. 8 [67 L.Ed.2d 207, 216].)
“[W]hether or not the defendant has met his or her prima facie burden, and whether or not the defendant has rebutted the plaintiff’s prima facie showing, are questions of law for the trial court, not questions of fact for the jury.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).)
“The McDonnell Douglas analysis is used primarily at the summary judgment stage to determine whether each party can meet its burden of proof as a matter of law. It does not involve a determination of credibility and is not intended as a means of instructing the jury. The ultimate burden of persuasion remains with plaintiff to prove that the ‘true’ reason for the employer’s adverse action was intentional discrimination. (Reeves v. Sanderson Plumbing Products, Inc.[, supra,] 530 U.S. [at p. 142]; see also St. Mary’s Honor Ctr. v. Hicks (1993) 509 U.S. 502, 507 [125 L.Ed.2d 407, 416].)” (Chin et al., Cal. Practice Guide: Employment Litigation, supra, § 1:391, p. 7-70, original italics.)
“In short, if and when the case is submitted to the jury, the construct of the shifting burdens ‘drops from the case,’ and the jury is left to decide which evidence it finds more convincing, that of the employer’s discriminatory intent, or that of the employer’s race- or age- [or disability-]neutral reasons for the employment decision. Because the only issue properly put to the jury here on the issue of employment discrimination was whether the [employer’s] decision not to renew [the employee’s] contract was motivated by age or race, the shifting burdens of proof were irrelevant to the jury deliberations.” (Caldwell, supra, 41 Cal.App.4th at p. 204.)
Under these holdings, it is obvious the trial court erred when at the District’s request it injected the McDonnell Douglas balancing test into the jurors’ deliberations by means of the special instruction and special verdict question. The special instruction wrongly asked the jury to determine questions of law. It required the jury to determine if a prima facie presumption of discrimination had been rebutted by the District’s showing. This was an issue of law relevant at a pretrial proceeding such as a summary judgment motion. It was not relevant by the time this case went to the jury. Even if it had been relevant, it was not correct to involve the jury in making this legal determination. The McDonnell Douglas test is not to be used as a jury instruction.
The District claims the McDonnell Douglas test is appropriate at trial, citing Guz, supra, 24 Cal.4th 317. We do not read Guz as deciding that point. Guz was an appeal from a summary judgment where the trial court had employed the McDonnell Douglas analysis. Explaining the balancing analysis, the Supreme Court stated the test applied “at trial.” (Guz, supra, at pp. 354-356.) However, the matter before the court was not an appeal from a judgment following trial. Rather, it concerned whether the trial court had made appropriate determinations of law on summary judgment.
We thus read the language in Guz as limited to its facts, that of a motion for summary judgment, and agree with the Caldwell court: “[T]he 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, supra, 41 Cal.App.4th at p. 202; see also Horsford, supra, 132 Cal.App.4th at pp. 375-377 [limiting Guz to its facts and refusing to apply McDonnell Douglas to an appeal from a jury trial]; contra, Green v. Par Pools, Inc. (2003) 111 Cal.App.4th 620, 625-627 [relies on Guz’s references to “at trial” to conclude McDonnell Douglas applies at trial to establish sex discrimination claim under federal Equal Pay Act].)
Even if it were appropriate in general to direct a jury to use the McDonnell Douglas test, it was not appropriate here because plaintiff’s case was one of direct evidence, not circumstantial evidence. The McDonnell Douglas analysis is not used where there is direct evidence that the employer’s adverse action is discriminatory on its face. (Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 121 [83 L.Ed.2d 523, 533].)
Plaintiff’s case relied primarily on the operation of the modified duty policy, and on the testimony of Shook, the District’s risk manager, who stated plaintiff was not allowed to continue working because he could not get a complete doctor’s release. In other words, Shook prevented plaintiff from working because of plaintiff’s continuing disability. Shook admitted he did not even consider plaintiff’s individual circumstances in making this decision.
Shook’s testimony is direct evidence of discriminatory motive because it shows discriminatory intent without inference or presumption. Thus, there was no need for the jury to engage in a McDonnell Douglas analysis to determine if this evidence was sufficient for the jury to infer a presumption of discriminatory intent. The McDonnell Douglas analysis is designed “to assure that the ‘plaintiff [has] his day in court despite the unavailability of direct evidence.’ [Citation.]” (Trans World Airlines, Inc. v. Thurston, supra, 469 U.S. at p. 121.)
Additionally, even if it were appropriate to use the McDonnell Douglas test at trial, it was not correct for the special verdict question given in this case to convert the District’s purported showing of a legitimate business purpose into an affirmative defense. That evidence can overcome only a plaintiff’s prima facie showing of discrimination, not defeat plaintiff’s claim as a matter of law.
“The central issue is and should remain whether the evidence as a whole supports a reasoned inference that the challenged action was the product of discriminatory or retaliatory animus. The employer’s mere articulation of a legitimate reason for the action cannot answer this question; it can only dispel the presumption of improper motive that would otherwise entitle the employee to judgment in his favor.” (Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 715, original italics.)
The District makes much of plaintiff’s inconsistent statements in his worker’s compensation and CalSTRS proceedings regarding the effect of his injury on his ability to perform his job. We agree with the trial court, when it denied the District’s second motion for summary judgment, that plaintiff’s subsequent claims of total disability occurring after the District refused to let him work were not relevant to his ability to perform his job before the District took its action.
For all the reasons stated, we conclude the trial court erred when it instructed the jury with the special instruction and the special verdict question based on the McDonnell Douglas analysis.
C. Prejudicial error
While the giving of an erroneous instruction is not inherently prejudicial (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573–580), we conclude the error here requires reversal. “[I]nstructional error requires reversal only ‘“where it seems probable” that the error “prejudicially affected the verdict.”’ [Citation.] The reviewing court should consider not only the nature of the error, ‘including its natural and probable effect on a party’s ability to place his full case before the jury,’ but the likelihood of actual prejudice as reflected in the individual trial record, taking into account ‘(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.’” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983.)
There is no doubt the special instruction and special verdict question misled the jury to believe the mere showing of a nondiscriminatory business purpose was sufficient to find for the District. As shown above, this was incorrect. The jury should have been allowed to consider the District’s evidence with plaintiff’s evidence to determine whether plaintiff’s disability was a substantial factor in the District’s decision to prevent him from working.
As also shown above, there is strong evidence that plaintiff’s disability was in fact a substantial factor in the District’s decision. The jury could have reasonably believed Shook’s testimony that, for him, plaintiff’s ongoing disability was the only factor that mattered. He was just following the District’s modified duty policy, and the policy required plaintiff to cease working because he was not fully healed from his injury.
It is true that plaintiff failed to apply for reasonable accommodations. It is also true he was familiar with accommodations from his work with students needing them. However, the record does not establish plaintiff was aware of the requirement to request accommodations in order to continue working, particularly in light of the fact that everyone involved knew plaintiff was performing his job duties without requiring any accommodations. He testified he was not told about the requirement to request reasonable accommodations. The November 15, 2001, memorandum did not mention this requirement. Shook stated he did not meet face-to-face with plaintiff until a year after plaintiff stopped working.
The packet of information sent each year to the employees notified them only that if they believed they needed an accommodation for a handicapping condition, they were to contact the assistant superintendent or other named personnel. It did not include the modified duty policy, nor did it inform plaintiff he was required to request accommodations even if he did not need them in order to continue working once the 60-day modified duty period expired.
Moreover, plaintiff’s failure to request accommodations may not be a decisive factor. Although the District’s policy required plaintiff to request accommodations, FEHA may have obligated the District to provide them without plaintiff’s request. An employer who knows of an employee’s disability has an affirmative duty to make reasonable accommodations even if the employee has not requested them. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-951, 954-955 [employer aware of employee’s disability had affirmative duty to inform employee of other suitable job opportunities within the company].)
There is evidence the District knew of plaintiff’s disability and the policy’s requirement of reasonable accommodations in order for plaintiff to continue working, and yet it did nothing. The jury could believe the District essentially laid in wait. From the doctor’s letter, the District knew of plaintiff’s injury and the restrictions placed upon him, and it knew plaintiff was performing his normal job duties without the aid of any accommodations. Yet it did not inform him of the requirement to request accommodations in order to continue working. Instead, it waited for plaintiff to request accommodations formally when it also knew the modified policy period would end and that plaintiff required some form of accommodation review in order to continue working. A jury could determine this bureaucratic bungling resulted in plaintiff not being allowed to work under the policy because he was not free of disability and he required accommodations at the end of the 60-day period to continue working.
Under these circumstances, there is a reasonable probability the jury, when instructed correctly, would find for plaintiff. We conclude the instructional error was prejudicial, and the judgment must therefore be reversed.
II
Denial of Plaintiff’s Motion for Directed Verdict
Plaintiff claims the trial court erred in denying his motion for a directed verdict. He asserts the District’s policy was a 100 percent healed policy that is an invalid discriminatory employment action per se. He also claims the jury determined all of the liability issues in his favor, and that no substantial evidence supports the verdict against him. We agree that in this instance, the District’s policy, as applied to plaintiff, operated as a 100 percent healed policy, and thus a directed verdict should have been granted.
The trial court’s denial of a directed verdict is reviewed under the substantial evidence standard. “Only if there was no substantial evidence in support of the verdict could it have been error for the trial court earlier to have denied [plaintiff’s] motion for directed verdict.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630, original italics.)
A 100 percent healed policy is a per se violation of FEHA, as well as the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.), “because it permits an employer to avoid the required individualized assessment of the employee’s ability to perform the essential functions of the job with or without accommodation. (McGregor v. National R.R. Passenger Corp. (9th Cir. 1999) 187 F.3d 1113, 1116.)” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 50, fn. 11.)
The District’s policy may not be an invalid 100 percent healed policy in the abstract because it provides for the individualized assessment to occur upon the employee’s request for accommodations. However, in this instance, the modified duty policy was applied to plaintiff as a 100 percent healed policy.
The District prohibited plaintiff from working under the requirements of the modified duty policy because he could not obtain a complete medical release. The November 15, 2001, memorandum notifying him of the pending work stoppage informed him only that he would not be allowed to work unless he produced a complete medical release. Shook admitted he relied upon the fact that plaintiff did not produce a complete medial release as the basis for ordering plaintiff to cease working, and that he did not consider whether plaintiff’s restrictions prevented him from performing his normal job duties. He performed no individualized assessment.
The District faults plaintiff for not requesting accommodations. As already discussed, however, there is no evidence the District informed plaintiff of the requirement to request accommodations in order to continue working. Instead, the record shows the District, with knowledge of plaintiff’s ability to perform the job without the aid of accommodations, prohibited plaintiff from working pursuant to its modified duty policy because he could not produce a complete medical release, or, in other words, because he was still disabled. No substantial evidence suggests otherwise.
DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with instructions to grant plaintiff’s motion for directed verdict. Costs on appeal are awarded to the plaintiff. (Cal. Rules of Court, rule 8.278(a).)
We concur: SCOTLAND, P. J., CANTIL-SAKAUYE, J.