George v. Ingram Micro Services CA4/1 ( 2024 )

Filed 2/29/24 George v. Ingram Micro Services CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KIERRAH GEORGE, D082205
Plaintiff and Appellant,
v.
(Super. Ct. No. RIC1903685)
INGRAM MICRO SERVICES, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Riverside County,
Carol A. Greene, Judge. Affirmed.
Irving Meyer, for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis and Baldwin J. Lee,
Alexander Nestor and Laila Rashid for Defendant and Respondent.
Kierrah George appeals a jury’s special verdict in favor of defendant
and respondent Ingram Micro Services (Ingram Micro) on her employment
law claims. She contends the court instructed the jury with a special
instruction that misstated the law, and compounded that error by referring
the jury to that instruction in response to a jury question. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
George disclaims a substantial evidence challenge; accordingly, we
need only summarize some of the underlying facts for context.
The record does not include a copy of George’s complaint, but we glean
from the special verdict form that she sued Ingram Micro claiming: (1)
disability discrimination; (2) failure to prevent discrimination; (3) retaliation;
(4) failure to provide a reasonable accommodation; (5) failure to engage in
interactive process; and (6) wrongful termination in violation of public policy.
The parties stipulated to the following facts at trial: In July 2012,
Ingram Micro hired George. She went on leaves of absence from June 26,
2013, to July 22, 2013; from September 5, 2013, until about October 27, 2014;
from September 12, 2017, until May 3, 2018; and from May 7, 2018, until her
termination on May 10, 2019.
The court read to the jury special instruction No. 36, which states:
“When the employee cannot presently perform the essential functions of her
position, or otherwise needs time away from work for treatment and recovery,
a reasonable accommodation may include holding a job open for an employee
on a leave of absence or extending a leave if the leave is likely to be effective
in allowing the employee to return to work at the end of the leave, with or
without further reasonable accommodation. [¶] An employer, however, is not
required to provide an indefinite leave of absence as a reasonable
accommodation.”
In a proceeding outside of the jury’s presence before the court
instructed the jury, Ingram Micro’s counsel argued in favor of instruction No.
36: “I think the evidence that’s come in thus far more than justifies this
instruction in the sense that we have all the work status reports that indicate
that [George] was released and returned to work, according to the reports,
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but actually was unable to return to work; that there were conversations that
[Ingram Micro’s human resources representative] had with [ ] George in the
last few weeks before her employment ended where she asked [ ] George
whether she was able to return to work, whether she could contact her doctor,
and the response always was she doesn’t know. She doesn’t want to contact
her doctor. She doesn’t know when and how she’ll be able to return to work.
[¶] So I think that the evidence certainly supports the indefinite leave is not
a reasonable accommodation instruction.”
George’s counsel objected to instruction No. 36 on grounds that it
lacked a provision stating that Ingram Micro had terminated George due to
an undue hardship.
The court overruled George’s objection: “The problem is that the
reasonable accommodation does not depend solely on undue hardship
because—the word ‘reasonable’ is in there for a reason, and the [California
Code of Regulations], as well as case law, has basically said that an indefinite
leave of absence is not reasonable. That you keep—you don’t have someone
out on your books for years and years and just say, ‘Well, they got a disability
so I can’t separate them from employment.’ ”
During its deliberations, the jury asked the court, “Can an employee be
terminated if they are considered fully disabled at the time of termination?”
The court replied, “Yes, please refer to jury instruction [No.] 36.” (Some
capitalization omitted.)
There is no record of the discussion between the parties regarding the
court’s decision to provide that reply to the jury. The court reporter
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submitted a declaration stating that no discussion of it was held on the
record.1
On the special verdict form, the jury was asked whether George proved
by a preponderance of the evidence the following facts: (1) “as of May 10,
2019, she was able to perform the essential functions of her logistics associate
position with or without a reasonable accommodation” (some capitalization
omitted); (2) “a substantial motivating reason for Ingram [Micro]’s decision to
terminate her employment was retaliation for her taking disability leaves
that began on September 12, 2017, and ended on May 3, 2018[,] and began on
May 7, 2018[,] and ended on May 10, 2019”; (3) George “was able to perform
the essential functions of her . . . position with reasonable accommodation for
her physical disability”; and (4) Ingram Micro “failed to participate in a
1 George’s counsel has requested that under California Rules of Court,
rule 8.155(a)(1), we take judicial notice of a separate supporting declaration
he submits in this court, in which he states: “When the trial court received
an inquiry from the jury, and the trial court formulated its response . . . I
objected to the trial court’s response saying that ‘the response was not a
correct statement of the law.’ The trial court overruled my objection and gave
the instruction as stated in the jury request or question.” (Some
capitalization omitted.) Ingram Micro objects to this request, arguing
counsel’s declaration is inadmissible under California Rules of Court, rule
8.155(a)(1), which by its terms permits this court to order the record
augmented with only any “document filed or lodged in the case in the
superior court.” Applying the precise terms of this rule, we decline to grant
George’s request for judicial notice of this declaration, which was not
considered by the trial court. (In re the Marriage of Forrest and Eaddy (2006)
144 Cal.App.4th 1202, 1209 [“the record cannot be ‘augmented’ with material
that was not before the trial court”]; but see Code Civ. Proc., § 909.) Also,
counsel’s request seems akin to a request that we take new evidence, which
this court usually does not do. (See Hill v. San Jose Family Housing
Partners, LLC (2011) 198 Cal.App.4th 764, 770 [court’s authority to make
findings of fact on appeal “should be exercised sparingly” and in “exceptional
circumstances”].)
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timely good faith interactive process with her to determine whether
reasonable accommodation for her physical disability could be made.” The
jury answered “no” to all of them.
DISCUSSION
George seeks a new trial, arguing the court erroneously instructed the
jury with instruction No. 36 because the jury’s question used the term, “fully
disabled,” which has no legal meaning. She claims the instruction and the
court’s response to the jury’s question “gave the jury the false impression that
[she] was in fact ‘fully disabled,’ prejudicing [the jury] toward a verdict for the
defense.” George contends that even if she were “fully disabled” at the time
of the termination, “it doesn’t mean she could not work with an
accommodation despite being fully disabled or placed on an additional leave
of absence. [¶] What’s more relevant is whether the employee can work with
an accommodation, which [she] could have, according to her doctor’s work
status report.” (Some capitalization omitted.)
Ingram Micro contends the court properly instructed the jury and
answered its question by pointing to instruction No. 36, which was a correct
statement of the law. It further maintains George has not established
reversible error.2 It also argues George failed to meet her burden of
providing an adequate record for us to assess her instructional error claim.
2 Ingram Micro explains that instruction No. 36 “closely tracks the
language of [California Code of Regulations, title 2, section 11068,
subdivision (c)],” which deals with paid or unpaid leaves of absence as a
reasonable accommodation that an employer may make for an employee’s
disability. It provides: “When the employee cannot presently perform the
essential functions of the job, or otherwise needs time away from the job for
treatment and recovery, holding a job open for an employee on a leave of
absence or extending a leave provided by [law], or an employer’s leave plan
may be a reasonable accommodation provided that the leave is likely to be
effective in allowing the employee to return to work at the end of the leave,
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On appeal, we review the propriety of the jury instructions de novo.
(Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.)
In considering the accuracy or completeness of a jury instruction, we evaluate
it in the context of all of the court’s instructions. (Ibid.) We will not reverse a
civil judgment, even where instructional error is shown, unless, after
examining the entire record, we conclude the error complained of resulted in
a miscarriage of justice. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
580-581 (Soule).) “Instructional error in a civil case is prejudicial ‘where it
seems probable’ that the error ‘prejudicially affected the verdict.’ ” (Id. at p.
580.) “Thus, when deciding whether an error of instructional omission was
prejudicial, the court must also evaluate (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.” (Id. at pp. 580-581.)
George first argues that the trial court erred by giving the last sentence
of special instruction No. 36 on reasonable accommodations. The
immediately preceding sentence of this instruction stated that “a reasonable
accommodation may include holding a job open for an employee on a leave of
absence or extending a leave if the leave is likely to be effective in allowing
the employee to return to work at the end of the leave, with or without
further reasonable accommodation.” The final sentence challenged by George
stated: “An employer, however, is not required to provide an indefinite leave
of absence as a reasonable accommodation.”
with or without further reasonable accommodation, and does not create an
undue hardship for the employer. When an employee can work with a
reasonable accommodation other than a leave of absence, an employer may
not require that the employee take a leave of absence. An employer,
however, is not required to provide an indefinite leave of absence as a
reasonable accommodation.” (Cal. Code Regs., tit. 2, § 11068, subd. (c).)
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This final sentence was a correct statement of the law. (Cal. Code
Regs., tit. 2, § 11068, subd. (c) [“An employer . . . is not required to provide an
indefinite leave of absence as a reasonable accommodation”]; see also Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 377-378 [“A finite leave of
absence may be a reasonable accommodation to allow an employee time to
recover, but FEHA does not require the employer to provide an indefinite
leave of absence to await possible future vacancies”]; accord, Atkins v. City of
Los Angeles (2017) 8 Cal.App.5th 696, 721-722 (Atkins).)
George contends that this sentence incorrectly stated the law because it
omitted any reference to the employer’s burden of demonstrating that an
indefinite leave would impose an “undue hardship.” However, Ingram Micro
did not assert an undue hardship defense, and there is no indication in the
record suggesting that the jury was instructed on it.3 Government Code
section 12940, subdivision (m)(1) “places the burden of demonstrating undue
hardship on the employer.” (Atkins, supra, 8 Cal.App.5th at p. 733.) The
first sentence of the statute provides that it is unlawful for an employer to
“fail to make a reasonable accommodation” for a disabled employee, then the
second sentence states: “Nothing in this subdivision . . . shall be construed to
require an accommodation that is demonstrated by the employer or other
covered entity to produce an undue hardship, as defined in subdivision (u) of
Section 12926, to its operation.” (Gov. Code, § 12940, subd. (m)(1), italics
added.)
George herself concedes that Ingram Micro “never presented any
evidence that providing an accommodation to [her] would be an undue
hardship.” As a result, it would have been error to instruct the jury on this
3 The court reporter did not report the jury instructions when the court
read them to the jury and the written packet of instructions is not included in
the clerk’s transcript.
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theory. (See People v. Medina (2019) 33 Cal.App.5th 146, 154 [error to
instruct on theory unsupported by the evidence].)
Under the FEHA, an employer may choose to argue that an
accommodation is unreasonable without claiming undue hardship. In Raine
v. City of Burbank (2006) 135 Cal.App.4th 1215, for example, the plaintiff
argued that his disability should have been accommodated by converting his
temporary assignment into a permanent position, and he claimed that his
employer had failed to meet its burden of demonstrating that such an
accommodation would pose an undue hardship. (Id. at pp. 1226-1227.) The
Court of Appeal rejected this argument as follows: “The question presented
. . . is not whether assigning Raine to the front desk on a permanent basis
imposes an undue hardship, but whether the accommodation requested is
reasonable and thus required in the first place. (See [Gov. Code,] § 12940,
subd. (m) [reasonable accommodation required unless the accommodation,
even if reasonable, imposes undue hardship].)” (Id. at p. 1227.) Because the
requested accommodation was unreasonable as a matter of law, the Court of
Appeal affirmed a defense judgment despite the absence of any claim of
undue hardship.
Here as well, Ingram Micro was entitled to argue that it provided
reasonable accommodations to George by granting her multiple leaves of
absence, and that granting another leave for an indefinite period was not a
reasonable accommodation, even absent any claim of undue hardship. As the
trial court correctly ruled in giving special instruction No. 36 over George’s
objection, “the accommodation doesn’t have to be an undue hardship to the
employer to be unreasonable.” For these reasons, the court committed no
error by giving special instruction No. 36 without any reference to undue
hardship.
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George also argues that the trial court erred in its answer to the jury’s
question: “Can an employee be terminated if they are considered fully
disabled at the time of termination?” The court responded: “Yes, please refer
to jury instruction [No.] 36.” George maintains that this response was
incorrect because there was no evidence she was fully disabled, the term
“fully disabled” has no legal meaning, and the court’s answer gave the jury
the impression that she was fully disabled and therefore could be terminated
even if she could have worked with a reasonable accommodation. George is
correct that there is no way of knowing what exactly the jury meant by “fully
disabled.” For example, the jury could have meant that she was incapable of
returning to work indefinitely. But whatever the jury meant, the court’s
answer did not state or imply that she was in fact fully disabled. The jury
asked whether an employee could be terminated “if” she was fully disabled.
The court’s initial “yes” answer did not in any way suggest that George was
fully disabled; it merely indicated that a fully disabled employee can lawfully
be terminated, then the court qualified the answer by referring the jury back
to special instruction No. 36 on reasonable accommodations. Construing the
court’s answer together with the previously given special instruction No. 36,
it correctly informed the jury that a fully disabled employee may be
terminated if there is no reasonable accommodation for the disability.
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DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
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