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Court of Appeal, Fourth District, Division 2, California.

Dwight D. GREEN, Plaintiff and Appellant, v. STATE of California, Defendant and Appellant.

No. E034568.

Decided: August 24, 2005

Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, and Michelle Logan-Stern, Deputy Attorney General, for Defendant and Appellant. Pine & Pine, Norman Pine, Beverly Tillett Pine;  Law Offices of David H. Greenberg and David H. Greenberg, San Diego, for Plaintiff and Appellant.


1. Introduction

Plaintiff Dwight D. Green worked for defendant, the State of California, as a stationary engineer at a correctional facility for over 12 years before he was placed on disability retirement.   The jury found that, in failing to provide plaintiff with reasonable accommodation for his Hepatitis C, defendant discriminated against plaintiff in violation of the Fair Employment and Housing Act (the FEHA).  (Gov.Code, § 12900 et seq.) 1  The jury awarded plaintiff $597,088 in economic damages and $2,000,000 in noneconomic damages, which the court reduced to $1,800,000.

In challenging the jury's verdict, defendant raises the following claims:  the jury's verdict was not supported by the evidence;  the decision of the workers' compensation judge barred plaintiff's disability discrimination claim;  the court abused its discretion in excluding evidence of the Workers' Compensation Appeals Board (the Appeals Board) proceeding and the testimony of Dr. Alvin Markovitz, the qualified medical examiner for the administrative proceeding;  the court erred in instructing the jury on the elements of the prima facie case and the defenses;  and the award of $2,000,000 in noneconomic damages was excessive.   In his cross-appeal, plaintiff claims the trial court exceeded its authority in reducing the noneconomic damages and abused its discretion in denying the requested amount of attorneys fees.

Defendant's challenges to the sufficiency of the evidence and the instructions require that we decide whether the trial court correctly placed upon defendant the burden of establishing that plaintiff was incapable of performing his essential functions with reasonable accommodations, as required under section 12940, subdivision (a).   We conclude that it was defendant's burden to prove plaintiff's incapacity as an affirmative defense and not plaintiff's burden to prove his capacity to perform as part of his prima facie case.   Based on this conclusion, there was substantial evidence to support the jury's finding of disability discrimination.

As to defendant's evidentiary claims, we conclude that the doctrine of collateral estoppel did not apply because the workers' compensation proceeding involved a disability discrimination claim under Labor Code section 132a, instead of a discrimination claim under the FEHA. The court, therefore, properly excluded evidence of the administrative proceeding and Dr. Markovitz's testimony.   For the reasons provided below, we reject defendant's remaining claims.

In regards to plaintiff's cross-appeal, we agree that the trial court had no sua sponte authority to grant the motion for new trial on excessive damages.   We disagree, however, with plaintiff's contention that the court abused its discretion in refusing to award $498,300 in attorney fees.

We affirm the judgment, but reverse the trial court's ruling on the motion for new trial.   The trial court must reinstate the judgment following the jury's verdict.

2. Factual and Procedural History

Plaintiff began working for the State of California in 1974 and specifically for the California Institute of Men (the Institute) as a stationary engineer in 1987.2  A stationary engineer's duties included the maintenance and repair of boilers, air conditioners, refrigerators, and other equipment and mechanical systems.   In performing these duties, the stationary engineer supervised and worked with a crew of inmates.   The stationary engineer also conducted searches and assisted the guards in preventing injury and escape.

Plaintiff first discovered that he had Hepatitis C in 1990.   Plaintiff presumably contracted the disease while working on the sewer pipes at the Institute.   Despite his condition, plaintiff continued performing his duties as a stationary engineer.

Throughout his employment at the Institute, there were no prior complaints concerning plaintiff's work performance.   Instead, plaintiff received letters of commendation.   George Woods, who supervised plaintiff from 1994 to 1997, found plaintiff to be one of his best stationary engineers, capable of performing all of his required job duties.

In 1997, plaintiff's physician, Dr. James Wang, began to treat plaintiff with a drug called Interferon or Infergen, which is a specific type of Interferon.   A single course of treatment required injections three times a week for a one-year period.   As a result of the injections, plaintiff began to experience certain side effects, including fatigue, aches, and stress or agitation.   Because of these side effects, Dr. Wang wrote a letter to defendant requesting that plaintiff be placed on light duty until about June of 1997.

Based on Dr. Wang's letter, Woods accommodated plaintiff by allowing him to arrive late on the days that he received the Infergen injections.   Woods at times assigned plaintiff to positions that did not require heavy labor, including the general shop.   Even under normal circumstances, stationary engineers often used inmates to do most of the heavy labor.   Woods observed that plaintiff was able to continue performing his duties.

In 1999, plaintiff injured his back at work on two separate occasions.   After the first injury in June, plaintiff was assigned to light duty, as recommended by his doctor.   Under defendant's policy, an employee may be given a light duty assignment for a maximum of 120 days, which included an initial period of 60 days with one 60-day extension.   After plaintiff reinjured his back in November, the 120 days had expired and plaintiff was placed on disability leave.

At about the same time, plaintiff began a second course of Infergen injections to treat his Hepatitis C. The treatments began in April of 1999 and were scheduled to end in April of 2000.   Dr. Wang wrote a second letter to defendant again recommending light duty based on the side effects from the Infergen injections.

On July 3, 2000, plaintiff returned to work with a letter from his back doctor clearing him for full duty.   Aside from his physical therapy sessions for his back, plaintiff was at work performing his full duties.   At the time, the return-to-work coordinator at the Institute, Kristi Hilliker, reviewed a doctor's report, which was prepared in 1997 for plaintiff's workers' compensation claim, that required that plaintiff be limited to a minimum of physical activity.3 After Hilliker informed Associate Warden Sheila Tatum that plaintiff should not have been cleared for full duty, they decided to meet with plaintiff.

On the same day, July 17, 2000, plaintiff went to Hilliker's office because he felt fatigued because of his condition, which was aggravated by the heat of the day.   Hilliker and plaintiff went to Tatum's office.   Plaintiff complained of fatigue and asked to see his doctor.   Based on plaintiff's work restrictions, Hilliker and Tatum decided that plaintiff was incapable of performing his duties.   They discussed various options, but refused to allow plaintiff to return to his position as a stationary engineer.   Plaintiff initially selected the option of disability retirement.

After the meeting, there was some communication between plaintiff and Hilliker concerning the options.   In a letter dated October 2, 2000, Hilliker informed plaintiff that unless he obtained a letter from Dr. Markovitz clearing him for full duty, he could not return to his position as a stationary engineer.   The letter also set forth other options, including vocational rehabilitation, medical leave, and disability retirement.   Plaintiff did not respond to Hilliker's letter.

Instead, in November of 2000, plaintiff went back to the Institute and asked Hilliker if he could return to work.   Hilliker denied his request based on the earlier findings of the workers' compensation judge.4  When plaintiff did not submit an application for disability retirement, Hilliker completed the application on plaintiff's behalf and Tatum signed the application.

Plaintiff filed a claim for disability discrimination with the Department of Fair Employment and Housing.

Plaintiff subsequently filed his complaint for damages in superior court alleging that defendant discriminated against him based on his disability and failed to accommodate his disability in violation of the FEHA. The jury returned a general verdict for plaintiff and awarded him $597,088 in economic damages and $2,000,000 in noneconomic damages.

Defendant moved for a new trial challenging the trial court's decision to exclude Dr. Markovitz's testimony.   During the hearing on defendant's motion, the trial court noted that the evidence did not support the jury's award of $2,000,000 in noneconomic damages.   Thus, while the court rejected defendant's arguments, it nevertheless ruled that the motion would be granted unless plaintiff accepted a remittitur.   Plaintiff filed a notice of acceptance.

Defendant appealed from the court's judgment and plaintiff appealed from the court's conditional ruling granting defendant's motion for new trial.

3. Prima Facie Case Under the FEHA

Plaintiff alleged two separate causes of action under the FEHA:  disability discrimination under section 12940, subdivision (a), and the failure to provide reasonable accommodation under section 12940, subdivision (m).

A. Disability Discrimination

 In regards to plaintiff's cause of action for disability discrimination, the primary question is:  does plaintiff have to prove that he has the capacity to perform his essential duties as an element of his prima facie case or does defendant have to establish that plaintiff cannot perform his duties with reasonable accommodation?   Contrary to the decision in Brundage v. Hahn (1997) 57 Cal.App.4th 228, 66 Cal.Rptr.2d 830, we hold that the burden lies with defendant.

We begin our analysis with the language of the statute.   Section 12940 provides, in part:

“It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

“(a) For an employer, because of the ․ physical disability, mental disability, medical condition ․ of any person, ․ to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

“(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, ․ where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.”

In Brundage v. Hahn, supra, 57 Cal.App.4th 228, 66 Cal.Rptr.2d 830, the plaintiff alleged that her employer discriminated against her based on her mental disability as prohibited under the FEHA and the federal Americans with Disabilities Act (Disabilities Act).   Based on the similarities between state and federal antidiscrimination laws, the court considered the plaintiff's state and federal claims together and relied on federal authority in its analysis.  (Id. at p. 235, 66 Cal.Rptr.2d 830.) Applying the elements of a prima facie case of discrimination under the Disabilities Act, the court required that the plaintiff show that:  “(1) plaintiff suffers from a disability;  (2) plaintiff is a qualified individual;  and (3) plaintiff was subjected to an adverse employment action because of the disability.”  (Id. at p. 236, 66 Cal.Rptr.2d 830, citing Morisky v. Broward County (11th Cir.1996) 80 F.3d 445, 447.)   The Brundage case turned on the first and third elements.   The court had no occasion to discuss the second element and, as noted by the court, the precise nature of the prima facie case was not at issue.  (Brundage, supra, at p. 236, fn. 1, 66 Cal.Rptr.2d 830.)

Nevertheless, courts have used the same elements for the prima facie case in a disability discrimination claim under the FEHA. (See, e.g., Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 971, 2 Cal.Rptr.3d 329;  Finegan v. County of Los Angeles (2001) 91 Cal.App.4th 1, 7, 109 Cal.Rptr.2d 762;  Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254, 102 Cal.Rptr.2d 55;  Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472, 480, 100 Cal.Rptr.2d 914;  Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44, 90 Cal.Rptr.2d 15;  see also Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058, fn. 11, 80 Cal.Rptr.2d 660.)   While some courts have recognized the Brundage court's reliance on federal authority (See Finegan, supra, at p. 7, 109 Cal.Rptr.2d 762;  Jensen, supra, at p. 254, fn. 3, 102 Cal.Rptr.2d 55;  Quinn, supra, at p. 480, 100 Cal.Rptr.2d 914, citing Pensinger v. Bowsmith, Inc. (1998) 60 Cal.App.4th 709, 719, 70 Cal.Rptr.2d 531), none of them have questioned whether the elements are consistent with the state statute.

Despite wide acceptance of the Brundage elements, there remains great confusion as to what constitutes a prima facie case for a claim under section 12940, subdivision (a).   Under BAJI No. 12.12, the plaintiff is not required to prove his ability to perform his essential duties.   The Judicial Council of California Civil Jury Instructions, on the other hand, includes the capacity to perform as one of the essential elements for a disability discrimination claim under section 12940, subdivision (a).  (CACI No. 2540 (January 2005 ed.).)   The Directions for Use provide, however, that “there appears a divergence in authority on whether the plaintiff is required to prove that he or she has the ability to perform the essential duties of the job.”  (Directions for Use following CACI No. 2540, comparing Brundage v. Hahn, supra, 57 Cal.App.4th at p. 236, 66 Cal.Rptr.2d 830 with Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360, 118 Cal.Rptr.2d 443.)   Although the Judicial Council refers to the Bagatti case, that case provides little guidance here because the plaintiff alleged a failure to accommodate and not discrimination.

In this case, the plaintiff relies on the following statement:  “Under the FEHA, the burden is on the employer to prove that the employee could not perform the job's essential functions, with or without reasonable accommodation.”  (Chin et al., Cal. Practice Guide:  Employment Litigation (The Rutter Group 2004) ¶ 9:2430, p. 9-143, citing 2 Cal.C.Regs. § 7293.8 and Ackerman v. Western Elec. Co., Inc. (9th Cir.1988) 860 F.2d 1514, 1519.)   However, the same source, while acknowledging some disagreement, includes the ability-to-perform requirement as an element of the prima facie case for a “reasonable accommodation” claim.  (Chin, supra, at ¶ 9.2346, p. 9-139.)

Another source seems to teeter back and forth from the Judicial Council instructions, which include the capacity to perform, and the general description of a disability discrimination claim in the Code of Regulations, which contains no such language.  (2 Wilcox, Cal. Employment Law (1998) Substantive Requirements, § 41.32[2][c], p. 41-84.1, fn. 79, § 41.32[2][c], p. 41-86, & § 41.32[2][c], p. 41-88-41-89.)

This confusion began with Brundage.   As mentioned above, Brundage involved a federal Disabilities Act claim and a FEHA claim.   The court decided to rely on federal law because state and federal law contained similar provisions.  (Brundage, supra, 57 Cal.App.4th at p. 235, 66 Cal.Rptr.2d 830.)

But were the laws sufficiently similar to adopt the federal standard without modification?   While one statute may have been fashioned after the other, the state statute appears to be broader in scope than its federal counterpart.   On other subjects, courts have recognized that the state and federal provisions differ in significant respects.  (See Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1024-1027, 130 Cal.Rptr.2d 662, 63 P.3d 220 (definition of physical disability);  Stevenson v. Superior Court (1997) 16 Cal.4th 880, 917, fn. 2, 66 Cal.Rptr.2d 888, 941 P.2d 1157 (qualifying employers);  Bagatti, supra, 97 Cal.App.4th at p. 358, 118 Cal.Rptr.2d 443 (protected individuals);  Jensen, supra, 85 Cal.App.4th at p. 256, fn. 5, 102 Cal.Rptr.2d 55 (definition of disability).)

While the Bagatti case involved only a reasonable accommodation claim under section 12940, subdivision (m), the court's discussion of the federal statute and regulations is instructive.   The court explained, “[t]he operative principle is that a federal regulation may be ‘useful’ to guide the construction of the FEHA where the state statute or an interpretive state regulation are modeled on the ADA. [Citation.]  [¶] Here, however, the interpretive statement of the EEOC is based upon ADA provisions that differ in important material respects from the applicable FEHA provision․” (Bagatti, supra, 97 Cal.App.4th at p. 358, 118 Cal.Rptr.2d 443.)   The Bagatti court noted that the federal regulations repeatedly referred to “ ‘ “a qualified individual with a disability.” ’ ”  (Id. at p. 359, 118 Cal.Rptr.2d 443.)   Section 12940, subdivision (m), refers only to “an applicant or employee.”

Similarly, section 12940, subdivision (a), applies to “any person.”   Granted, in a disability discrimination claim, the distinction between federal and state law is not as clear.   Yet the subtle difference is significant.

Under the Disabilities Act, the general rule provides:  “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”  (42 U.S.C. § 12112(a).)

 In contrast to the Disabilities Act's use of the term “qualified individual,” the general rule under the FEHA prohibits disability discrimination against “any person” without reference to employment qualifications. (§ 12940, subdivision (a).)   The California Code of Regulations provides:  “Disability discrimination is established by showing that an employment practice denies, in whole or in part, an employment benefit to an individual because he or she is an individual with a disability.”  (Cal.Code Regs., tit. 2, § 7293.7.) Under the statute, the employee's qualifications, or ability to perform his essential duties, is mentioned in subdivision (a)(1) and (2), possibly as an exception to the rule or a defense to a claim of discrimination.   Accordingly, the administrative regulations include “inability to perform” in their list of potential defenses.  (Cal.Code Regs., tit. 2, § 7293.8.) Generally, when an administrative agency is authorized to adopt regulations and standards to administer a statute, the courts give deference to the agency's interpretation so long as it is reasonable and consistent with the statutory language.  (See Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1516, 34 Cal.Rptr.2d 291.)   According to these regulations, the Fair Employment and Housing Commission (the Commission) has placed the burden of proof on defendant.

As a practical consequence of the Commission's interpretation, a disabled plaintiff would have one less hurdle to contend with on his path to recovery.   After the plaintiff shows that he was discriminated against because of his disability, if the defendant cannot establish an inability to perform or any other defense, the plaintiff would be entitled to relief.

While the Commission's interpretation provides plaintiff with greater protection, we find it entirely consistent with the FEHA's intent.   The FEHA requires liberal construction of its provisions to accomplish its purposes. (§ 12993, subd. (a);  see also Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 819, 111 Cal.Rptr.2d 87, 29 P.3d 175.)   After amending the FEHA in 1992, the Legislature made clear that its provisions must be construed to provide disabled persons with the greatest protection available under either state or federal law.   Specifically, the Legislature declared its intent “to strengthen California law in areas where it is weaker than the [Disabilities Act] and to retain California law when it provides more protection for individuals with disabilities than the [Disabilities Act].” (Stats.1992, ch. 913, § 1, p. 4282;  see also Colmenares, supra, 29 Cal.4th at p. 1026, 130 Cal.Rptr.2d 662, 63 P.3d 220.)   In 2000, the Legislature also declared:  “Although the federal act provided a floor of protection, this state's law has always, even prior to passage of the federal act, afforded additional protections.” (§ 12926.1, subd. (a).)

The administrative agency, therefore, advances the FEHA purpose of affording plaintiffs greater protection by removing the burden of proving capacity to perform as an element of a prima facie case.   As noted by the Ninth Circuit in Ackerman v. Western Electric Co. (1988) 860 F.2d 1514, the Commission specifically amended its regulations in 1987 to clarify that inability to perform was an affirmative defense for which defendant bears the burden of proof.  (Id. at p. 1518.)  “The only requirement remaining was that plaintiff show that she was handicapped and had been denied an employment benefit because of it.  [Citation.]  In explaining its reasons for the change, the Commission made it clear that it was simply acting to correct what it regarded as a misreading of its prior regulations.”  (Ibid.)

 Based on language in section 12940 and the administrative regulations, we conclude that establishing a prima facie case requires proof of the following elements:  (1) the plaintiff is a person with a disability or medical condition, and (2) the defendant made an adverse employment decision (3) because of plaintiff's disability or medical condition.   As in other employment discrimination cases, if the plaintiff satisfies his initial burden of establishing a prima facie case of discrimination, the burden shifts to the employer to provide a legitimate nondiscriminatory reason for its employment decision.  (See Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 197, 48 Cal.Rptr.2d 448, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668.)   In a disability discrimination case under the FEHA, the employer may show that its decision was based on plaintiff's inability to perform the essential functions of his position, even with reasonable accommodation.   If the employer successfully makes this showing, the burden shifts back to the plaintiff, who then may prove by a preponderance of the evidence that defendant's reason is false and a mere pretext for discrimination.  (See Perez v. County of Santa Clara (2003) 111 Cal.App.4th 671, 676, 3 Cal.Rptr.3d 867, citing Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207.)

The prima facie case for disability discrimination under section 12940, subdivision (a), therefore, does not require plaintiff to prove that he is a qualified individual.   Rather, the burden is on defendant to establish that plaintiff is incapable of performing his essential duties with reasonable accommodation.

B. Reasonable Accommodation

Based on the parties' treatment of the two causes of action as a single claim, the initial question is whether a reasonable accommodation claim under section 12940, subdivision (m), is a separate cause of action.   The court in Bagatti, supra, 97 Cal.App.4th 344, 118 Cal.Rptr.2d 443, held that it is.

As provided in section 12940, subdivision (m), “[i]t shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, ․ [¶] ․ [¶][f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”

In Bagatti, the plaintiff worked as a supervising accounting clerk for the Department of Rehabilitation.   Although her job duties required mobility, the plaintiff had polio and was unable to walk long distances.   She requested that her employer accommodate her with motorized transportation, but the employer refused.   Plaintiff subsequently suffered a work-related injury and was unable to return to work.   She sued her employer for failing to provide reasonable accommodation in violation of section 12940, subdivision (m).

The employer relied on the elements of a prima facie case for a reasonable accommodation claim under the Disabilities Act, which required that the plaintiff show that she was a qualified individual with a disability who suffered an adverse employment action because of her disability.  (Bagatti, supra, 97 Cal.App.4th at p. 360, 118 Cal.Rptr.2d 443.)   The court in Bagatti found, however, that the provisions in the FEHA and the Disabilities Act are materially different.  (Id. at p. 362, 118 Cal.Rptr.2d 443.)

As discussed above, the Bagatti court observed that while the federal provision refers to the protected individual as “a qualified individual with a disability,” the state provision referred only to “an applicant or employee.”   (Bagatti, supra, 97 Cal.App.4th at p. 360, 118 Cal.Rptr.2d 443.)   To establish a prima facie case under the FEHA, the plaintiff therefore was not required to show that she was capable of performing her duties.  (Id. at pp. 360 & 361, fn. 4, 118 Cal.Rptr.2d 443;  but see Jensen, supra, 85 Cal.App.4th at p. 256, 102 Cal.Rptr.2d 55.)

As also observed by the court in Bagatti, another difference between the federal and state statutes was that section 12940, subdivision (m) does not require a discriminatory act.   Under subdivision (m), a disabled employee's right to request reasonable accommodation is not contingent upon the employer's conduct.  (Id. at p. 361, 118 Cal.Rptr.2d 443.)   The failure to provide an applicant or employee with reasonable accommodation in and of itself constitutes an unfair employment practice, for which the applicant or employee can bring suit under subdivision (m).  (Id. at pp. 360-361, 118 Cal.Rptr.2d 443;  see also Smith v. International Brotherhood of Electrical Workers (2003) 109 Cal.App.4th 1637, 1656, 1 Cal.Rptr.3d 374.)

 To establish a prima facie case for a reasonable accommodation claim under section 12940, subdivision (m), the plaintiff must show that she had a disability and that the employer did not make reasonable accommodation for her known disability.  (See Bagatti, supra, 97 Cal.App.4th at pp. 353-356, 118 Cal.Rptr.2d 443.)   As with a claim under section 12940, subdivision (a), if the case involved a hiring or firing decision, the employer may defend its decision based on the plaintiff's inability to perform his essential duties even with reasonable accommodation. (§ 12940, subd. (a)(1) & (2);  Watkins v. Ameripride Services (9th Cir.2004) 375 F.3d 821, 828.)   An employer, however, is not required to accommodate an applicant or employee if the accommodation would produce an undue hardship on the employer's operation. (§ 12940, subd. (m);  Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947, 62 Cal.Rptr.2d 142.)

As stated above, the plaintiff in this case alleged a cause of action for disability discrimination under section 12940, subdivision (a), and a separate cause of action for failing to provide reasonable accommodation under section 12940, subdivision (m).  Despite this second and entirely distinct claim, the parties focused solely on the discrimination claim.   Additionally, although the court instructed the jury on the second cause of action by giving BAJI No. 12.15, which is entitled, albeit inappropriately, “Disability Discrimination-Reasonable Accommodation ․,” the plaintiff did not discuss the elements of a reasonable accommodation claim in his closing argument to the jury.   Under these circumstances, it is unlikely that the jury relied upon this alternative basis for recovery in reaching its verdict.   In any event, as discussed in the following section, substantial evidence supported the jury's verdict on the disability discrimination claim.

4. Sufficient Evidence of Disability Discrimination

 Defendant claims that insufficient evidence supported the jury's verdict.   Defendant's primary contention is that plaintiff failed to establish that he was capable of performing his essential duties as a stationary engineer.   Based on our conclusion that inability to perform is an affirmative defense, we will address this contention and defendant's other arguments in a manner consistent with the parties' respective burdens of proof.

A. Standard of Review

In determining whether sufficient evidence supports a judgment, a reviewing court must consider the whole record in a light most favorable to the prevailing party and resolve all evidentiary conflicts and draw all reasonable inferences in favor of the judgment.  (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203, 52 Cal.Rptr.2d 518.)   We defer to the jury's credibility determinations.  (Id. at p. 1204, 52 Cal.Rptr.2d 518.)   A reviewing court does not substitute its judgment for that of the jury, but accepts the jury's findings if supported by substantial evidence.  (Id. at pp. 1203-1204, 52 Cal.Rptr.2d 518.)

In arriving at its verdict, the jury necessarily found that plaintiff satisfied his burden of establishing a prima facie case.   The jury also found that defendant failed to prove that a legitimate, nondiscriminatory reason existed for its employment decision.   We must accept these findings if supported by substantial evidence.

In addition to challenging the evidence supporting plaintiff's prima facie case, defendant also argues that reversal is required because substantial evidence supports its defenses.   The question, however, is not whether there is substantial evidence to support a defense, but whether there is substantial evidence to support the jury's finding that defendant failed to establish a legitimate, nondiscriminatory reason for its decision.  (See California Teachers Assn. v. Governing Board (1987) 195 Cal.App.3d 285, 295-298, 240 Cal.Rptr. 549.)   In other words, it is not enough for defendant to show that there was substantial evidence that plaintiff could not perform his essential duties.   Evidence in the record that contradicts the jury's finding does not demand that we reverse the jury's verdict for lack of sufficient evidence.  (See People v. Valdez (2004) 32 Cal.4th 73, 104, 8 Cal.Rptr.3d 271, 82 P.3d 296.)   Instead, if the record contains substantial evidence that plaintiff was capable of performing his duties, we must uphold the jury's finding.

B. Prima Facie Case

As mentioned above, plaintiff was required to prove that (1) he had a disability, (2) defendant made an adverse employment decision, and (3) defendant made the decision because of plaintiff's disability.   In challenging only the third element, defendant argues that plaintiff failed to show that his disability was a motivating factor in defendant's decision to prevent him from returning to his position.   Defendant attempts to draw a distinction between plaintiff's disability and the work restrictions for his disability.   We find the distinction to be one without a difference.

Defendant's reliance on the Jensen case is inapposite.   The Jensen court makes no distinction between an employee's disability and his work restrictions.  (Jensen, supra, 85 Cal.App.4th at p. 256, 102 Cal.Rptr.2d 55.)   The court only discussed an employee's inability to perform.  (Ibid.) A decision based on the plaintiff's inability to perform is not inconsistent with the finding that disability was a motivating factor.   A claim that a plaintiff cannot perform his essential duties under section 12940, subdivision (a)(1) and (2), is in essence a claim that, while the decision was made because of the plaintiff's disability, the employer was entitled to treat the plaintiff differently because the plaintiff cannot perform the essential functions of his position.  (See Cal.Code Regs., tit. 2, § 7293.8(b);  see also City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160, 77 Cal.Rptr.2d 445, 959 P.2d 752.)   Reliance on plaintiff's inability to perform can be construed, therefore, as an admission that disability was a motivating factor for defendant's employment decision.

Furthermore, physical disability, by definition, is a condition that “limits a major life activity.” (§ 12926, subd. (k)(1)(B).)  Disability usually results in some limitation or restriction.   In an employment setting, the disability may be referred to in terms of the plaintiff's work restrictions.   (See Johns-Manville Products Corp. v. Workers' Comp. Bd. (1978) 87 Cal.App.3d 740, 751, 151 Cal.Rptr. 215 (discussing doctor's depiction of disability in terms of work restrictions-the doctor coincidentally was Dr. Alvin Markovitz.)   Although disability refers to the condition and work restrictions refer to the results of that condition, we conclude that a decision based on work restrictions is the same for all practical purposes as a decision based on disability.   To conclude otherwise would allow employers to assert that their decisions are never based on disability, but rather on the effects directly resulting from the employee's disability.

Substantial evidence in the record showed that plaintiff's disability or work restrictions were a motivating factor for defendant's decision.   Both Hilliker and Tatum testified that they decided that plaintiff could not continue his employment as a stationary engineer because of his work restrictions.   Tatum also testified that her decision was based on “the permanent condition that he could not [perform his job] and that was related to hepatitis C.” The record provides sufficient evidence that defendant made an adverse employment decision because of plaintiff's disability.

C. Defenses

 Defendant claims that its decision was compelled by a business necessity or a bona fide occupational qualification.   In addition to these defenses, it is fair to characterize defendant's earlier argument concerning plaintiff's inability to perform as another reason for its employment decision.   As we will discuss below, the business necessity defense does not apply in the context of a disability discrimination claim under the FEHA. While the occupational qualification defense applies to such claims, defendant cannot establish that all disabled persons are incapable of performing the duties of a stationary engineer.   In regards to plaintiff's capacity to perform, substantial evidence supports the jury's finding that plaintiff was capable of performing the essential duties of his position.

We briefly explain why defendant's reliance on the business necessity defense is misplaced.   Derived from federal antidiscrimination law, the business necessity defense applies only to disparate impact cases, where the protected class is disproportionately and adversely affected by an employer's facially neutral employment practice.  (West v. Bechtel Corp. (2002) 96 Cal.App.4th 966, 983, 117 Cal.Rptr.2d 647;  Johnson Controls, Inc. v. Fair Employment & Housing Com. (1990) 218 Cal.App.3d 517, 541, 267 Cal.Rptr. 158.)   The defense has no application in a disparate treatment case, where an employee is treated differently because of his disability or other classification.  (West, supra, at p. 983, 117 Cal.Rptr.2d 647;  see also Hemmings v. Tidyman's Inc. (9th Cir.2002) 285 F.3d 1174, 1181, fn. 4;  Morton v. United Parcel Services, Inc. (9th Cir.2001) 272 F.3d 1249, 1260.) Because this case falls into the latter category, defendant has no basis-and provides none-for relying on the business necessity defense.  (See Gonzalez v. State Personnel Bd. (1995) 33 Cal.App.4th 422, 431, 39 Cal.Rptr.2d 282 (claim without citation to legal authority is deemed to be waived).)

In addition to its claim of business necessity, defendant also relies on the bona fide occupational qualification defense.   Section 12940 specifically provides that a discriminatory employment practice is unlawful “unless based upon a bona fide occupational qualification.”  “The BFOQ defense, as required by the statute, when applied to justify overt disparate treatment, has two components:  First, the employer must demonstrate that the occupational qualification is ‘reasonably necessary to the normal operation of [the] particular business.’   Secondly, the employer must show that the categorical exclusion based on protected class characteristic is justified, i.e., that ‘all or substantially’ all of the persons with the subject class characteristic fail to satisfy the occupational qualification.  [Citations.]”  (Johnson Controls, supra, 218 Cal.App.3d at p. 540, 267 Cal.Rptr. 158 [emphasis omitted];  see also BAJI No. 12.02 (January 2005 ed.).)   Ordinarily, an employer asserts this defense to justify its categorical exclusion of all individuals having a particular class characteristic.   This case, however, does not involve a categorical exclusion of all disabled persons.

Even if the defense applied under these facts, defendant must show that all or substantially all disabled persons are unable to perform the job duties of a stationary engineer safely and efficiently.  (See Sterling Transit Co., Inc. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 797, 175 Cal.Rptr. 548 (rejecting argument to define the class in more precise terms, i.e., all persons with back problems).)   Defendant neither made this assertion nor presented evidence to support it.

Instead, the crux of defendant's argument both below and on appeal is that plaintiff, because of his physical restrictions resulting from his disability, was unable to perform the essential functions of his position as a stationary engineer.   Defendant relies, therefore, on the defense set forth in section 12940, subdivision (a)(1).  (See Cal.Code Regs., tit. 2, § 7293.8(b).)  The term “essential functions” is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires ․ [and] does include the marginal functions of the position.” (§ 12926, subd. (f);  Cal.Code Regs., tit. 2, § 7293.8(g).)  The evidence that may be considered in determining whether a particular function is essential includes the following:  the employer's judgment as to the essential functions for the position;  a written job description;  the amount of time spent performing the function;  and the consequences of not requiring the performance of the function. (§ 12926, subd. (f)(C);  Cal.Code Regs., tit. 2, § 7293.8(g)(2).)

Based on the State Personnel Board's written job description, a stationary engineer must be able “to perform a variety of skilled work in the operation, maintenance and repair of boiler, heating, air conditioning, ventilating, lighting, power, water, water treatment, and other mechanical systems normally found in a State correctional facility in the Department of Corrections or Department of Youth Authority;  to maintain order and supervise the conduct of inmates, wards, residents, or patients and protect and maintain the safety of persons and property;  may instruct or lead inmates, wards, patients, or resident workers;  may instruct or lead other engineers;  and do other related work.”   The job description also provides that the position requires the following special physical characteristics:  “sufficient strength, agility, and endurance to perform during stressful (physical, mental, and emotional) situations encountered on the job without compromising their health and well-being or that of their fellow employees or that of inmates.”

Although defendant presented evidence that plaintiff did not meet his job qualifications because of his light duty restrictions, the evidence failed to show that plaintiff was under these restrictions at the time of the meeting on July 17, 2000.   When plaintiff returned to work after taking disability leave because of his back injuries, his back doctor cleared him for full duty.   Although Dr. Wang also recommended light duty, the restriction applied while plaintiff was receiving his Infergen treatments.   In his letter, Dr. Wang informed defendant that “[o]ne course of the treatment lasts for one year” and that plaintiff received his “first shots in mid-April of 1999.”   Dr. Wang confirmed that plaintiff's treatment would have ended by April of 2000.   By July of 2000, plaintiff was not under any current light duty restrictions.

Nevertheless, both Hilliker and Tatum testified that they found plaintiff incapable of performing his job functions because of his permanent disability and the physical restrictions associated with his disability.   Even with permanent physical limitations, there was no evidence that plaintiff was incapable of performing his essential functions with reasonable accommodations.   Defendant cannot rely on overgeneralizations or presumptions, but must provide individualized evidence based on plaintiff's specific limitations.  (See San Diego Unified Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 506, 73 Cal.Rptr.2d 30.)   Hilliker admitted that she did not contact plaintiff's supervisors or take any affirmative steps to investigate whether plaintiff was performing his duties.

Defendant argues that, because plaintiff's disability only allowed him to take assignments that required a minimum of physical activity, there was no reasonable accommodation that would have enabled plaintiff to continue his work as a stationary engineer.   In other words, defendant had no duty to provide reasonable accommodation because none existed.

Apparently, defendant's argument did not carry great weight with the jury.   It was difficult to convince the jury that plaintiff could not work because of his disability when, in fact, he had been performing his duties as a stationary engineer with Hepatitis C since about 1990.   Defendant produced no evidence to show that plaintiff's performance was deficient.   In fact, the only evidence in the record was to the contrary.   Plaintiff's former supervisor testified that plaintiff was able to perform all of his job functions.   Plaintiff received letters of accommodation, including a letter in 1999 that acknowledged that plaintiff's service had never been less than satisfactory.   When plaintiff returned to his job in July of 2000, he performed his full duties.

Upon his return, plaintiff worked about two weeks before the meeting with Hilliker and Tatum.   During that time, he attended physical therapy for his back injuries.   While on the job, plaintiff was assigned to his full duties in the culinary area.   Plaintiff worked three eight-hour days during the second week.   On the first day of the third week, plaintiff went to Hilliker's office and complained of fatigue because of the heat.   At the time, the only accommodation plaintiff requested was to go and see his doctor.   Although the parties disagree as to what transpired during this meeting, we must consider the evidence in the light most favorable to the judgment.   According to plaintiff, Hilliker and Tatum refused to provide any accommodation and simply told him that he could “no longer work there” and that they would “retire [him].”   While defendant could not prevent plaintiff from going to see his doctor on his own time, the record supports the jury's finding that they failed to provide plaintiff with any accommodation before deciding to place him on disability retirement.

The Department of Corrections operational manual specifically requires reasonable accommodations.   The manual provides:  “ ‘All employees who incur disabling injuries or illnesses and wish to remain employed shall be provided with reasonable accommodations.   This includes the necessary employee options to remain productive state employees.   Alternative job placement will be provided wherever appropriate, and if transfer is necessary contacting respective hiring authorities, shall be the responsibility of the local reasonable accommodations coordinator.’ ”   Hilliker was the “reasonable accommodations coordinator” for the Institute.   The manual also provides:  “ ‘Employees who are unable to perform the essential functions of their current positions because of a disabling conditions [sic ] should not be separate[d] from state service until all possible alternatives for retention have been explored.’ ”

 Defendant argues that they should not be held liable for failing to provide reasonable accommodation because plaintiff was uncooperative.   When an employee informs his employer of his disability or desire for accommodation, the employer has a duty to initiate the informal, interactive process to identify a reasonable accommodation.  (Jensen, supra, 85 Cal.App.4th at p. 261, 102 Cal.Rptr.2d 55.)  “ ‘[T]he interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees' with the goal of ‘identify[ing] an accommodation that allows the employee to perform the job effectively.’  [Citation.]”  (Ibid.;   quoting Barnett v. U.S. Air, Inc. (2000) 228 F.3d 1105, 1114.)

Defendant specifically argues that plaintiff caused the breakdown of this interactive process by failing to respond to the October 2, 2000, letter.   In this letter, defendant set forth several options, including the option of returning to work after obtaining a full medical release from Dr. Markovitz, vocational rehabilitation, medical leave, and retirement.   The first option provided the only choice that allowed plaintiff to continue his employment as a stationary engineer.   The problem was that Dr. Markovitz was not plaintiff's treating physician.   Also, because of plaintiff's disability, he may not have been able to obtain a full medical release from any doctor.   Reasonable accommodation, however, is not for the healthy, but for those who are unable to perform their essential duties because of some physical disability or medical condition.   An option that requires that plaintiff prove that he can perform his duties is not reasonable accommodation.

As indicated by his attempt to return to work in November of 2000, plaintiff wanted to continue working as a stationary engineer as he had been doing for about nine to 10 years after contracting Hepatitis C. There was no evidence to justify defendant's specific concerns that, because of his physical limitations, plaintiff would be incapable of repairing heavy machinery and taking on assignments that required inmate supervision.   While defendant contends that it had no responsibility to reallocate plaintiff's essential duties to inmates or prison guards, the evidence shows that stationary engineers customarily delegated certain duties and that they rarely engaged in violent confrontations with inmates.   Plaintiff's former supervisor testified that stationary engineers, in performing various repair projects with a crew of inmates, usually required the inmates to do most of the heavy labor.   Even if this qualified as an accommodation-i.e., allowing plaintiff to assign the heavy labor to the inmates-such delegation of work may be reasonable where there is no evidence of undue hardship on defendant or other employees, or in this case, the inmates.

Also, it is questionable whether plaintiff's essential duties of supervising and searching the inmates included the responsibility of physically taking down an inmate.   Although plaintiff worked at a correctional facility, he was not employed as a security guard.   Unlike security guards, stationary engineers did not carry batons or weapons.   Also, the record indicates that situations requiring a takedown rarely occurred.   Thus, based on the language of the statute, one may argue that performing a takedown was not essential, but rather a “marginal function” of plaintiff's position. (§ 12926, subd. (f);  Gallagher, supra, 62 Cal.App.4th at p. 506, 73 Cal.Rptr.2d 30.)   Certainly, stationary engineers did not engage in this activity on any regular basis.   And, if a problem was to occur, a stationary engineer's primary responsibility was to blow a whistle to alert the security guards.   If plaintiff was working alone with the inmates in an isolated area, plaintiff might experience difficulty responding to a riot or other disturbance.   But even a stationary engineer who is not disabled and has no physical limitations might find it difficult to secure immediate help, restore peace, or prevent injury. In any event, a reasonable fact finder could have concluded that plaintiff's ability to perform should not depend upon such remote possibilities.

The evidence in the record showed that Hilliker and Tatum decided that plaintiff could not perform the essential duties of a stationary engineer because plaintiff was restricted to a minimum of physical activity.   Hilliker and Tatum, however, did not determine to what extent plaintiff's restrictions actually affected his work performance.   They simply assumed that an employee with plaintiff's limitations would not be able to fix boilers, climb stairs, and supervise inmates.   The evidence in the record, however, showed that, despite his disability and physical limitations, plaintiff had been fixing boilers, climbing stairs, and supervising inmates since 1990.   Based on the evidence in the record, the jury reasonably found plaintiff was capable of performing the essential functions of his position with reasonable accommodations.


10. Disposition

We affirm the judgment, but reverse the court's ruling on the motion for new trial.   The trial court is instructed to reinstate the judgment following the jury's verdict.   Plaintiff shall recover his costs and attorneys' fees on appeal.


1.   All further statutory references will be to the Government Code unless otherwise stated.

2.   Plaintiff's precise classification was stationary engineer (correctional facility) or stationary engineer, CF.

3.   The 1997 report was not admitted into evidence and Dr. Markovitz also was not allowed to testify.   In the report, Dr. Alvin Markovitz, specifically stated that plaintiff must be limited to light work with minimum physical activity.

4.   The court also excluded evidence of the administrative proceedings before the workers' compensation judge.   The record reveals two separate proceedings.   In 1999, the workers' compensation judge found that plaintiff suffered a work-related injury.   In 2003, the workers' compensation judge found that defendant's conduct did not amount to disability discrimination, as defined in Labor Code section 132a.

FOOTNOTE.   See footnote *, ante.


We concur:  HOLLENHORST, Acting P.J., and McKINSTER, J.