ARTHUR CARRILLO v. WIBERG CORPORATION OF CALIFORNIA

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Court of Appeal, Second District, California.

ARTHUR CARRILLO, Plaintiff and Appellant, v. WIBERG CORPORATION OF CALIFORNIA, Defendant and Respondent.

B219431

Decided: February 25, 2011

Amanda L. Thompson for Plaintiff and Appellant. Emilio Law Group and Daniel G. Emilio for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Arthur Carrillo worked as a truck driver for Wiberg Corporation of California (Wiberg or the company) and sued the company for failure to reinstate him and failure to engage in the interactive process to provide him a reasonable accommodation upon his return from medical leave.   Carrillo was on medical leave after experiencing complications from diabetes, which included double vision that temporarily prevented him from driving.   Wiberg requested a medical release stating he was cleared to drive, but Carrillo quit shortly after submitting the release and before the company could reinstate him.   After a bench trial, the court announced its decision 1 that Carrillo failed to prove his case for disability discrimination based upon a medical condition (diabetes) in violation of the Fair Employment and Housing Act (FEHA) ( Gov.Code, § 12940, subds.(a), (n)) 2 and wrongful termination in violation of public policy.   Carrillo's contentions on appeal turn on whether he suffered an adverse employment action because of his medical condition.   Finding sufficient evidence in the record to support the trial court's determination that Carrillo quit his job, and finding no merit in Carrillo's attempt to cloak his substantial evidence appeal as legal error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Carrillo sued his former employer for disability discrimination 3 and wrongful termination based upon what he alleged was his termination from Wiberg when the company failed to reinstate him following medical leave and failed to engage in the interactive process to provide him with a reasonable accommodation.   After a court trial, judgment was entered in the company's favor.   In accordance with the applicable standard, we recite the facts in the light most favorable to the judgment.  (Estate of Bristol (1943) 23 Cal.2d 221, 223;  Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) 4

1. Carrillo's Medical Leave

Carrillo worked as a truck driver for Wiberg beginning in November 2006.   Wiberg is a Canadian company that supplies ingredients to the food industry.   Wiberg's California facility is a distribution center.   Carrillo made deliveries for the company.

Carrillo has diabetes, which in November 2007 caused him to suffer from double vision and a droopy-eye condition.   On November 19, 2007, Carrillo's doctor treated him for the condition and recommended that Carrillo not drive for one week until his next appointment.   At his next appointment, Carrillo's doctor took him off work, stating he anticipated some improvement over the next six months.   Carrillo's eye condition, according to the doctor, made “driving unsafe because of poor depth perception.”   Carrillo gave the doctor's notes to his supervisor, Alex Ortega.   Carrillo was placed on medical leave.

Carrillo's job was held open for him while he was on medical leave.   Frank DeLaFuente filled in for Carrillo and was told he would have the position until Carrillo came back to work.

2. Wiberg's Request for Carrillo to Obtain a Release to Return to Driving

On January 31, 2008, Carrillo received a medical release from his doctor, stating he “[m]ay return to normal activities without restriction.”   Since the release did not state Carrillo could return to driving, the company asked Carrillo to provide a more specific release.   As Ortega testified, the company needed to make sure Carrillo could return to driving.5

On February 20, 2008, Carrillo provided a second release stating:  “Patient is cleared to return to driving, but is advised to return to us if his double vision recurs.”   Carrillo gave the release to Ortega, who told him he would have to contact Wiberg's corporate headquarters in Canada before Carrillo could return to work.

Carrillo's wife maintained contact with the company and called several times to ask when her husband could return to work.   Mrs. Carrillo stopped calling the company a couple of days after her husband submitted the second medical release.

3. Wiberg's Response to the Second Medical Release

Wiberg's president, Richard Welzel, testified that after receiving the second release in late February, the company checked with its insurance broker to make sure the release was sufficient, and that Carrillo would be covered under the company's insurance policy.   Once Wiberg received clearance from the insurance broker, Welzel, Ortega, and Wanda Liczyk, then Wiberg's controller, discussed Carrillo's return to work.

Welzel testified that in early March they decided Carrillo initially should return to work in the warehouse at the same rate of pay.   Welzel and Liczyk proposed this solution based upon the doctor's statement in the second medical release that Carrillo's double vision might recur, which they believed created a substantial risk of an accident.   Welzel's concern also was based, in part, on his personal experience dealing with diabetes.

Welzel instructed Ortega to call Carrillo and to reinstate him, but Ortega did not have a chance to reinstate Carrillo because he was informed Carrillo was looking for another job.

4. Carrillo Asks for a Job Reference and Does Not Return to Work

The Wiberg witnesses, including Welzel, Liczyk, Ortega, and Sylvia Cervantes, the California facility's office manager, all testified the company did not terminate Carrillo.   They all believed Carrillo voluntarily quit his job.

Cervantes testified she had a conversation with Carrillo in late February in which Carrillo told her he was looking for a job and asked her for a job reference.   Based on this conversation, Cervantes believed Carrillo had quit his job at Wiberg.   Cervantes told Ortega that Carrillo asked for a reference because he was looking for another job.   Ortega assumed Carrillo had quit on or about March 4, 2008.

Liczyk specifically asked Cervantes if Carrillo quit because Liczyk was responsible for payroll.   When Cervantes informed Liczyk that Carrillo quit, Liczyk removed him from the payroll at the end of March 2008.

Carrillo testified he believed the company had made a decision not to reinstate him in mid-December 2007 when he received his final vacation check.   His wife testified she believed the company did not intend to reinstate him in January, when he was initially released to return to work, but no later than February 24, 2008.   Her belief is based upon her conversations with Ortega;  she testified Ortega told her on two occasions that Carrillo should file for unemployment.   Ortega testified he never made that suggestion.

Carrillo applied for unemployment insurance on February 24, 2008, four days after he received the second release.

In early April 2008, Wiberg was looking for additional help, and Welzel asked Cervantes to call Carrillo to see if he had found a job and wanted to come back to work in the warehouse.   Carrillo called the office and rejected the offer.

5. The Trial Court Concludes Carrillo Cannot Prove Disability Discrimination

Following submission of final arguments in brief form, the trial court ruled in Wiberg's favor.   The trial court concluded in its tentative decision that Carrillo failed to prove his case.   Citing Carrillo's and his wife's conflicting testimony as to when and why he was terminated, his lack of interaction with the company to return to work, and Wiberg's testimony that he quit, the trial court stated it was difficult to analyze “when or if the Plaintiff was terminated.”   The tentative decision states that Carrillo's evidence “is not sufficient to support, by a preponderance of the evidence, his claims that he was wrongfully discharged because of his medical condition (diabetes) or that he was wrongfully discharged in violation of public policy.”

The trial court ordered Wiberg to prepare a statement of decision and a judgment.   The statement of decision reiterates the court's conclusion that Carrillo did not present sufficient evidence to prevail on his claims, quoting the conclusion from the tentative decision.   Carrillo filed no objections to the statement of decision.

Judgment was entered on October 6, 2009.   Carrillo's notice of appeal was prematurely filed on September 30, 2009, before either the statement of decision had been filed or the judgment had been entered.   Nevertheless, we exercise our discretion to treat the notice as filed immediately after entry of judgment.  (Cal. Rules of Court, rule 8.104(d)(2);  Cabral v. Soares (2007) 157 Cal.App.4th 1234, 1239, fn. 2.)

DISCUSSION

Carrillo contends he established a prima facie case of discrimination and points to several adverse employment actions, including his constructive discharge, the company's failure to engage in the interactive process, and his replacement by a non-disabled employee.   Carrillo also purports to challenge legal errors in the statement of decision that show the trial court's misperception of the meaning of an adverse employment action, the mistaken belief that an employee, and not his representative, must engage in the interactive process, and the trial court's failure to address his claim that Wiberg had an obligation to engage in the interactive process.   None of these contentions requires reversal under the appropriate standards of review.

1. Standards of Review

We review Carrillo's challenge to the trial court's conclusion that he did not establish a prima facie case of disability discrimination for substantial evidence.  “[I]n reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.  [Citations.]’  [Citation.]   In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings].  [Citations.]’  [Citation.]  We may not reweigh the evidence and are bound by the trial court's credibility determinations.  [Citations.]  Moreover, findings of fact are liberally construed to support the judgment.   [Citation.]”  (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.)   The substantial evidence standard of review applies to both express and implied findings of fact made by the court in its statement of decision.  (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501.)

When the court's statement of decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment.  (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)  “This rule ‘is a natural and logical corollary to three fundamental principles of appellate review:  (1) a judgment is presumed correct;  (2) all intendments and presumptions are indulged in favor of correctness;  and (3) the appellant bears the burden of proving an adequate record affirmatively proving error.’  [Citation.]”  (Ermoian v. Desert Hospital, supra, 152 Cal.App.4th at p. 494.)

To the extent that Carrillo is challenging a question of law, we use a de novo standard of review.  (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461.)   With these standards of review in mind, we conclude there are no grounds for reversal.

2. Substantial Evidence Supports the Judgment on Carrillo's Complaint for Disability Discrimination and Wrongful Termination

Carrillo contends he produced sufficient evidence to show Wiberg unlawfully terminated him in violation of the FEHA and public policy because of his medical condition.   We disagree.

The FEHA prohibits employers from discharging employees who are otherwise qualified to perform their jobs because of their physical disabilities or medical condition. (§ 12940, subd. (a);  Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886;  see also Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-345.)  “ ‘A prima facie case for discrimination “on grounds of physical disability under the FEHA requires plaintiff to show:  (1) he suffers from a disability;  (2) he is otherwise qualified to do his job;  and, (3) he was subjected to adverse employment action because of his disability.”  ‘ [Citation.]․”  (Arteaga v. Brink's, Inc., supra, at pp. 344-345.)   An employment action is adverse under the FEHA if it materially affects the terms, conditions, or privileges of employment.   (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051-1052.)

To establish a prima facie case, Carrillo had to show “ ‘ “ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion․”  ‘ “ ‘ [Citation.]”  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 520, fn. 2.) Carrillo has the burden to establish that Wiberg engaged in impermissible disability discrimination against him in violation of the FEHA. (Green v. State of California (2007) 42 Cal.4th 254, 263.)

Substantial evidence supports the court's determination that Carrillo did not suffer an adverse employment action.   Wiberg witnesses testified that Carrillo was not terminated.   While Wiberg was attempting to reinstate Carrillo as a driver, Carrillo quit his job.   Thus, there is evidence in the record from which the trial court could infer that Wiberg did not deny Carrillo reinstatement because of his disability, medical condition, or perceived disability.

Carrillo contends he was constructively discharged because of his disability when Wiberg delayed his reinstatement.   The court considered the conflicting evidence related to Wiberg's request for a second medical release, and the company's subsequent actions before they determined to reinstate him, and found in the company's favor.   Under the substantial evidence standard, an appellate court cannot reweigh the evidence, second-guess credibility determinations, or resolve conflicts in the evidence.  (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.)   Substantial evidence supports the implied finding that Carrillo voluntarily quit and was not constructively discharged.  (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1245, overruled on another ground, Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 498.)

Carrillo alternatively contends he suffered an adverse employment action because of a perceived disability when Wiberg intended to initially reinstate him in the warehouse, which constituted a change in status, or when Wiberg replaced him with a non-disabled employee.   Both arguments are belied by substantial evidence in the record.   Carrillo quit before Wiberg could present the accommodation to him.   Moreover, Carrillo's position was temporarily filled but remained open for Carrillo's return.   Under the standard of review, we do not reweigh this evidence.   Substantial evidence supports the implied finding that Carrillo did not suffer any adverse employment action.6  Accordingly, the trial court concluded Carrillo could not establish a prima facie case of disability discrimination.7

Carrillo's common law claim for wrongful termination is premised on the prohibitions set forth in the FEHA. (See Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894-897.)   As stated, the FEHA expressly prohibits disability discrimination. (§ 12940, subd. (a).)  Since substantial evidence supports the trial court's decision that Carrillo cannot prove a violation of the FEHA, it necessarily follows that Carrillo did not establish he was wrongfully terminated in violation of public policy.

3. The Statement of Decision Contains No Legal Errors Related to Determining an Adverse Employment Action or Engaging in the Interactive Process

Carrillo reads between the lines of the statement of decision to contend that the trial court legally erred by concluding Carrillo bore the burden of proof to establish he was actually terminated, as opposed to constructively discharged, and that the trial court erred in its understanding of the interactive process by suggesting that Carrillo, rather than his wife, had to maintain contact with Wiberg while on medical leave.   We find no legal error.

The statement of decision contains only one pronouncement of law, that is, Carrillo did not meet his burden to establish his disability discrimination claims.   In reaching that legal conclusion, the trial court made express factual findings based upon the conflicting evidence presented on whether, or if, Carrillo was terminated.   To that end, the trial court presented the conflicting evidence on whether Carrillo was terminated or quit, and weighed that testimony with the company's witnesses who testified Carrillo quit.   The trial court considered Carrillo's lack of direct contact with his employer during his leave as an indication that he did not want to return to work at Wiberg.   These factual findings, as opposed to legal conclusions, support the court's conclusion that Carrillo did not prove his disability discrimination claim.   The legal issues Carrillo raises on appeal simply cannot be found in the statement of decision.

4. Carrillo Forfeited his Challenge to the Statement of Decision by Failing to Bring the Issue to the Trial Court's Attention

Carrillo contends the trial court legally erred by failing to address his theory that Wiberg did not engage in the interactive process to provide him a reasonable accommodation, and Wiberg did not offer to provide him a reasonable accommodation.   Although Carrillo tried his case under the theory that he did not need an accommodation to return to driving, he contends on appeal Wiberg was required by law to engage in the interactive process because the company perceived him as suffering from a disability.   Carrillo concedes he did not draw the trial court's attention to the deficiencies in its decision after he received the tentative decision or the statement of decision.   The record contains no evidence that Carrillo raised any objections to the statement of decision.   These omissions resolve the issue.

A party may not complain on appeal of rulings to which it acquiesced in the lower court.  (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912 (Porterville ).)   It is unfair to the trial court and to the adverse party to attempt to take advantage of an alleged error or omission on appeal when the error or omission could have been, but was not, brought to the attention of the trial court in the first instance.  (In re Stier (2007) 152 Cal.App.4th 63, 75.)   When a trial court announces a tentative decision, a party who failed to bring any deficiencies or omissions to the trial court's attention forfeits the right to raise such omissions on appeal.  (Porterville, at p. 912.)   Likewise, if a party does not bring to the attention of the trial court omissions in a statement of decision, that party forfeits the right on appeal to argue that the statement was deficient.  (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134;  Code of Civ. Proc., § 634.)

Carrillo has forfeited this issue by failing to bring these omissions to the trial court's attention either after the tentative decision was issued, or by objection to the statement of decision.   Contrary to Carrillo's argument, this issue does not fall within the exception because Carrillo is not challenging a legal conclusion, that is, the judgment in favor of Wiberg, but rather the court's omission to rule on a theory of his case.   Carrillo could have brought this to the attention of the trial court, and he cannot present this argument to obtain a reversal on appeal.

Even if Carrillo had not forfeited the issue, his legal theories are not supported by the evidence.   Underlying the interactive process is the disabled employee's need for a reasonable accommodation.   An employer must engage in a good faith interactive process to explore alternatives to accommodate the employee's disability. (§ 12940, subd. (n);  Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th at pp. 424-425.)   The interactive process determines which reasonable accommodation is required.   (Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 263, fn. 7.) Both sides must keep the communication process open.  (Id. at p. 266.)

Carrillo quit his job before the company could engage in an interactive process to determine a reasonable accommodation.   Carrillo testified he did not need an accommodation and wanted to be reinstated only as a truck driver without any restrictions.   The company's concerns for safety upon learning his double vision might recur prompted the company to consider an accommodation of initially returning Carrillo to a warehouse position and later reinstating him as a truck driver.   Carrillo maintains this accommodation was discriminatory because the company perceived him as disabled, and he could perform the essential functions of a truck driver without accommodations.   Wiberg, however, did not have an opportunity to present this accommodation to Carrillo or to engage in any type of interactive process before Carrillo quit.   After Carrillo quit, Wiberg was under no obligation to engage in the interactive process and to propose a reasonable accommodation.   The trial court's omission on this issue in its statement of decision is understandable, since no ruling was necessary because Carrillo quit before the process could start.

We have considered and rejected the remaining arguments Carrillo presents on appeal to reverse the judgment.

DISPOSITION

The judgment is affirmed.   Wiberg is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Carrillo's appeal cites to the tentative decision.   The tentative decision is attached to the August 21, 2009 minute order.   The minute order states defendant is “to prepare the statement of decision and judgment for the court's signature.”   The clerk's transcript does not include the statement of decision or the judgment.   At our request, Carrillo has augmented the record to include the statement of decision and judgment..  FN1. Carrillo's appeal cites to the tentative decision.   The tentative decision is attached to the August 21, 2009 minute order.   The minute order states defendant is “to prepare the statement of decision and judgment for the court's signature.”   The clerk's transcript does not include the statement of decision or the judgment.   At our request, Carrillo has augmented the record to include the statement of decision and judgment.

FN2. Unless otherwise indicated, all statutory references are to the Government Code..  FN2. Unless otherwise indicated, all statutory references are to the Government Code.

FN3. Subdivision (a) of section 12940 prohibits an employer from discharging an employee who is otherwise qualified to perform his or her job because of a physical disability.   A physical disability includes diabetes. (§ 12926.1, subd. (c).)  Subdivision (n) of section 12940 states an employer is liable under the FEHA for failing to engage in a timely, good faith, interactive process with an employee to determine effective reasonable accommodations, if one is requested.   On appeal, Carrillo also contends Wiberg violated section 12940, subdivisions (m) and (k).  Subdivision (m) provides an independent cause of action for an employer's failure to provide a reasonable accommodation for an employee's known disability.   Subdivision (k) of section 12940 states an employer is liable for a FEHA violation for failing to prevent discrimination.   These latter two statutory provisions were not pled in the complaint but were argued and presented as a basis for liability at trial..  FN3. Subdivision (a) of section 12940 prohibits an employer from discharging an employee who is otherwise qualified to perform his or her job because of a physical disability.   A physical disability includes diabetes. (§ 12926.1, subd. (c).)  Subdivision (n) of section 12940 states an employer is liable under the FEHA for failing to engage in a timely, good faith, interactive process with an employee to determine effective reasonable accommodations, if one is requested.   On appeal, Carrillo also contends Wiberg violated section 12940, subdivisions (m) and (k).  Subdivision (m) provides an independent cause of action for an employer's failure to provide a reasonable accommodation for an employee's known disability.   Subdivision (k) of section 12940 states an employer is liable for a FEHA violation for failing to prevent discrimination.   These latter two statutory provisions were not pled in the complaint but were argued and presented as a basis for liability at trial.

FN4. We have disregarded the facts Carrillo relies on that are not part of the trial record or agreed to by the parties.   For example, Carrillo cites to the administrative complaint he filed with the Department of Fair Employment and Housing, which was submitted as an exhibit in opposition to Wiberg's motion for summary judgment but was not admitted into evidence at trial..  FN4. We have disregarded the facts Carrillo relies on that are not part of the trial record or agreed to by the parties.   For example, Carrillo cites to the administrative complaint he filed with the Department of Fair Employment and Housing, which was submitted as an exhibit in opposition to Wiberg's motion for summary judgment but was not admitted into evidence at trial.

FN5. Carrillo emphasizes this testimony in his argument to show discriminatory conduct, but takes the testimony out of context.   In his case in chief, Carrillo read Ortega's deposition testimony into the trial record.  “Q. Do you know why he needed to bring in two, rather than one, doctor's notes?  [¶] A. Yes. [¶] Q. Can you tell me why?  [¶] A. Because we needed to make sure that he was 100 percent healed.  [¶] Q. What do you mean by 100 percent?  [¶] A. Basically, he was 100 percent to perform his job driving for the company.”   Contrary to Carrillo's argument, the testimony does not establish Wiberg would not reinstate Carrillo unless his diabetes was “cured,” but rather the company wanted to make sure that he could return to driving.   As Carrillo argues, he was cured in the sense he was no longer experiencing double vision and was ready to return to driving in January 2008 without any accommodation..  FN5. Carrillo emphasizes this testimony in his argument to show discriminatory conduct, but takes the testimony out of context.   In his case in chief, Carrillo read Ortega's deposition testimony into the trial record.  “Q. Do you know why he needed to bring in two, rather than one, doctor's notes?  [¶] A. Yes. [¶] Q. Can you tell me why?  [¶] A. Because we needed to make sure that he was 100 percent healed.  [¶] Q. What do you mean by 100 percent?  [¶] A. Basically, he was 100 percent to perform his job driving for the company.”   Contrary to Carrillo's argument, the testimony does not establish Wiberg would not reinstate Carrillo unless his diabetes was “cured,” but rather the company wanted to make sure that he could return to driving.   As Carrillo argues, he was cured in the sense he was no longer experiencing double vision and was ready to return to driving in January 2008 without any accommodation.

FN6. We reject Carrillo's argument that substantial evidence presented at trial establishes Wiberg's failure to engage in the interactive process, which he argues constitutes a separate adverse employment action.   An employer must engage in a good faith interactive process to explore alternatives to reasonably accommodate the employee's disability. (§ 12940, subd. (n);  Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.)   The interactive process determines which reasonable accommodation is required.  (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7.) Substantial evidence presented establishes that Carrillo quit before Wiberg could attempt to reinstate him with or without a reasonable accommodation..  FN6. We reject Carrillo's argument that substantial evidence presented at trial establishes Wiberg's failure to engage in the interactive process, which he argues constitutes a separate adverse employment action.   An employer must engage in a good faith interactive process to explore alternatives to reasonably accommodate the employee's disability. (§ 12940, subd. (n);  Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.)   The interactive process determines which reasonable accommodation is required.  (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7.) Substantial evidence presented establishes that Carrillo quit before Wiberg could attempt to reinstate him with or without a reasonable accommodation.

FN7. Carrillo contends Wiberg's witnesses' conflicting testimony on when and if Carrillo quit suggests a finding of pretext.  (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886.)   The trial court did not reach this issue, having found no prima facie case of disability discrimination.   As stated elsewhere, we do not reweigh the evidence..  FN7. Carrillo contends Wiberg's witnesses' conflicting testimony on when and if Carrillo quit suggests a finding of pretext.  (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886.)   The trial court did not reach this issue, having found no prima facie case of disability discrimination.   As stated elsewhere, we do not reweigh the evidence.

CROSKEY, Acting P. J. KITCHING, J.