Torres v. Montebello Unified School District CA2/7 ( 2024 )

Filed 10/21/24 Torres v. Montebello Unified School District CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANA C. TORRES, B326575
Plaintiff and Appellant, (Los Angeles County Super. Ct.
No. 20STCV07153)
v.
MONTEBELLO UNIFIED
SCHOOL DISTRICT,
Defendant and
Respondent.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Michelle Williams Court, Judge.
Affirmed.
Gusdorff Law, Janet Gusdorff; The Mathews Law Firm,
Charles T. Mathews; Sottile Baltaxe, Michael F. Baltaxe and
Timothy B. Sottile for Plaintiff and Appellant.
Fozi Dwork & Modafferi, Golnar J. Fozi and
Daniel S. Modafferi for Defendant and Respondent.
INTRODUCTION
Ana C. Torres appeals from the judgment following a jury
verdict in favor of her former employer, Montebello Unified
School District, on her causes of action for failure to make a
reasonable accommodation for her disability, disability
discrimination, and retaliation under the Fair Employment and
Housing Act (FEHA). Torres argues that the trial court erred in
instructing the jury on her cause of action for disability
discrimination by not including the statutory definition of
“essential functions,” that the court’s instruction on her
retaliation cause of action conflicted with the special verdict form,
and that substantial evidence did not support the jury’s findings.
We conclude that, because Torres asked for the jury
instructions she now challenges, she invited any error and cannot
assert the argument on appeal and that in any event her
argument lacks merit. We also conclude the evidence did not
compel a finding in her favor on her causes of action. Therefore,
we affirm.
FACTS AND PROCEDURAL BACKGROUND
A. Torres Works as an Office Assistant at Montebello
High School
The District hired Torres in 2005, and Torres became a full-
time, year-round office assistant at Montebello High School in
2007. According to the District’s job description, an office
assistant performs a wide variety of tasks. These tasks, which
will be relevant to whether Torres could do them with reasonable
accommodation, included basic typing, routine office clerical
duties, answering the telephone and taking messages, providing
2
information to parents and students, preparing tardy slips,
opening and distributing mail, preparing and sorting outgoing
mail, providing basic first aid to students, operating a computer
and performing data entry, updating computer records,
generating documents, and maintaining student and staff
records, databases and files. Her job duties also included data
entry in manual and computer logs and files; sorting, duplicating
and filing a variety of District records and documents; ordering
office and teaching supplies; receiving, sorting and distributing
office and teaching supplies; checking in educational materials
and books; receiving and recording fees and preparing receipts;
shelving and distributing periodicals; and maintaining an
inventory of classroom books. Other possible duties included
scheduling meetings, assisting nutrition staff, performing lunch
clerk duties (such as receiving payments, counting money, and
generating daily cash reports), and assisting with student testing
and classroom coverage. Torres stated she performed all of these
tasks from the time she was hired in 2005 until she suffered a
work-related injury in 2014.
After 2014 the school modified some of Torres’s job
responsibilities. Torres testified, however, she still performed a
wide range of administrative tasks. For example, she collected
student fines, student uniforms, money for teacher fundraisers,
and library books and textbooks. She prepared registration
materials every year for more than 3,000 students, which
required her to review each student’s class schedule, determine
which students had fines to pay before they could register, and
alphabetize the schedules by hand. Torres sometimes worked in
the cafeteria at the cash register during lunch period, worked at
after-school track meets using a stopwatch to keep time and
3
logging by hand the names of student athletes, and prepared
attendance-related paperwork.
B. Torres Suffers a Work-related Injury to Both Hands
in 2014, and the District Provides Accommodations
In May 2014 a doctor diagnosed Torres with trigger finger
in her right index and middle fingers and her left middle finger.1
The doctor released Torres to work with temporary work
restrictions, including 20-minute-per-hour limits on using a
keyboard and mouse, doing repetitive work with either hand, and
gripping or grasping with either hand. The doctor also restricted
Torres to lifting, carrying, pushing, or pulling no more than
10 pounds. The weight limit was subsequently reduced to
five pounds.
1 “Trigger finger” is a condition that “affects the fibrous
flexor sheaths of the fingers or thumb within the palm. The
affected sheath thickens and entraps the contained tendons,
which become constricted at the site of entrapment . . . . The
finger now snaps as the tendon nodule passes through the
constriction on flexing the finger. The corresponding extensor
muscle is insufficiently powerful to extend the affected finger.
The patient does this passively, accompanied by a painful snap.
Treatment frequently requires surgical division of the A1 pulley
of the flexor sheath to relieve the stricture.” (Williams v.
Metropolitan Life Ins. Co. (4th Cir. 2010) 609 F.3d 622, 626, fn. 1;
see Ortiz v. Colvin (W.D.N.Y. 2018) 298 F.Supp.3d 581, 588, fn. 9
[“Trigger finger is ‘a condition in which the movement of the
finger is arrested for a moment in flexion or extension and then
continues with a jerk[.]’”].)
4
The school engaged in the interactive process with Torres
and provided the accommodations she requested,2 including an
ergonomic mouse, keyboard, and chair; a telephone headset; an
electric stapler; an electric hole puncher; and assistance from a
teaching assistant to carry heavy items and stuff envelopes. The
school allowed Torres to arrange her work activities so that she
would not exceed the 20-minute task limitations and to load
small quantities of paper (rather than full reams) into the copier
and fax machines. Torres admitted, and several of the
interactive conference notes indicated, her work restrictions
impacted essential job functions such as operating the telephone
switchboard; using a computer; lifting and carrying books, reams
of paper, mail crates, and other office supplies; and preparing
letters to students and parents. The school also noted that a
teacher’s assistant would perform some of Torres’s job duties and
that this accommodation was reasonable “at this time because
TAs are available to provide assistance.”
In May 2015 Torres developed trigger finger in her left
index finger. Her condition did not improve, and by August 2016
her work restrictions included, in addition to the previous
limitations, a prohibition on all gripping and grasping. Torres’s
work restrictions became permanent in 2016.
2 When a District employee requested an accommodation for
a disability, an administrator would handle the request
informally at the work site. If the parties could not agree on an
accommodation at the work site, the employee could submit a
written request for a reasonable accommodation to the District.
5
In late 2016 Torres’s doctor diagnosed her with bilateral
carpal tunnel syndrome and radial styloid tenosynovitis.3 Torres
reported pain, swelling, and stiffness in her left and right hand
joints. In April 2017 Torres was diagnosed with complex regional
pain syndrome4 and anxiety disorder.
C. Torres Falls at Work in November 2018, and the
District Provides Temporary Accommodations
On November 2, 2018 Torres fell at work and injured her
right knee and right wrist. Although the injuries from the fall
initially appeared minor, Torres’s pain and other symptoms
worsened over several weeks. Torres’s doctors placed her on
temporary total disability leave for 10 days.
Torres met regularly with the school’s assistant principal,
Dr. Phillip Nolasco, in November and December 2018 (and met
once with the principal, Helen Meltzer) to discuss Torres’s
temporary disability, the work restrictions ordered by her
physicians, and the accommodations she requested. The school
3 “Radial styloid tenosynovitis, commonly called
De Quervain’s tenosynovitis, is an inflammation of the fluid-filled
sheath that surrounds the tendons controlling the thumb.”
(Campeggio v. Upper Pottsgrove Township (E.D. Pa., Sept. 8,
2014, Civ. A. No. 14-1286) 2014 WL 4435396, p. 2, fn. 4.)
4 Complex regional pain syndrome “has been described as
pain ‘out of proportion to the apparent injury or the physical
findings,’ resulting from some ‘noxious event, trauma, or some
sort of binding like casting.’ It normally affects a region of the
body and is accompanied by ‘a continuous pain, frequently
described as a burning pain, and the presence of
hypersensitivity . . . .’” (Garretson v. Harold I. Miller (2002)
99 Cal.App.4th 563, 566.)
6
allowed Torres to wear supports on her right hand and right
knee, to use a cane, to sit while working, and to elevate her right
leg when seated.
D. Torres’s Condition Worsens, and the School Places
Her on Temporary Medical Leave as an
Accommodation
Torres saw a physician on January 14, 2019. Torres met
with Dr. Nolasco on January 17, 2019 and requested disability
accommodations that included wrist and knee braces, a cane as
needed, a limit on using her right hand, and a limit on standing
and walking. Dr. Nolasco approved Torres’s requested
accommodations and said the accommodations would be
reevaluated on February 25, 2019.
On January 25, 2019 Torres saw Dr. Robert Spencer,
a podiatrist, who prepared a lengthy written summary of his
findings. Dr. Spencer stated Torres had “continued problems of
her bilateral wrists, right knee, and bilateral ankles,” including
“symptomatic pain with weightbearing.” Dr. Spencer found
Torres had pain, swelling, “dysfunctionality,” and weakness in
both hands; radiating pain from her shoulders to her fingers,
particularly on the right side; “numbness of the first, second, and
third fingers”; and “significant pain to the thumb . . . with
difficulty performing first and second digit pinching causing pain
in that area significantly.” Dr. Spencer reported that Torres
continued “to show significant weakness to the right shoulder
and the right hand and has pain to the grip. She is unable to
close the hand without any great significance. Resistance to
opening the fingers is also symptomatically painful . . . .”
Dr. Spencer observed symptoms in Torres’s lower extremities,
7
including swelling of both feet; difficulty and pain in both knees
while walking, particularly on the right side; and instability and
weakness of the right knee. Dr. Spencer’s diagnoses included
“sprain/strain of the shoulder,” “carpal tunnel syndrome,” “ulnar
neuritis,” “low back pain with radiculopathy,” “right knee medial
meniscus tear,” “plantar fasciitis,” “metatarsalgia,” “possible
forefoot neuroma,” and “painful gait.”
Dr. Spencer recommended physical therapy, acupuncture,
pain management and hand specialists, and an MRI of the
cervical spine to determine the cause of the radiating pain in
Torres’s shoulders. Dr. Spencer also recommended Torres return
to his clinic for a follow-up visit in four weeks. Regarding
Torres’s 2014 injury, Dr. Spencer released Torres to work with
the pre-existing restrictions of 20-minute-per-hour time limits on
typing, filing, and repetitive work. The record does not contain a
written work release with restrictions relating specifically to
Torres’s November 2018 injury, but Dr. Spencer testified that
Torres was not permitted to grip or grasp anything in the
workplace and that he did not feel additional restrictions were
necessary because Torres generally sat down while working.
Torres met with Dr. Nolasco on January 25, 2019, after her
visit with Dr. Spencer. Dr. Nolasco asked Torres to identify
which job tasks she could perform at that time with
accommodation. Torres did not respond. Dr. Nolasco observed
that Torres could only type a maximum of 20 minutes per hour,
could not stand or walk for long periods, could not grasp the
telephone, and could not write because she could not grasp a
pencil or pen. As a result, Torres was able to perform only a
small percentage of her essential job functions. After conferring
with the school principal and a representative from the District’s
8
risk management department, Dr. Nolasco concluded Torres
could not perform her job, or any other available District job, with
reasonable accommodations. Dr. Nolasco placed Torres off work
as an accommodation and to allow her condition to improve, and
set a review date of February 25, 2019. Torres never requested a
further interactive process meeting.
E. A District Panel Agrees Torres Should Be Placed on
Temporary Medical Leave as a Disability
Accommodation; Torres Never Returns to Work
Torres asked for a District-level meeting to review
Dr. Nolasco’s decision to place her off work. (She also claimed
Dr. Nolasco terminated her employment at the January 25, 2019
meeting.) On February 7, 2019 Torres met with Dr. Nolasco,
Principal Meltzer, two members of the District’s risk
management team, a representative from the District’s human
resources department, and two representatives from Torres’s
union. The District concluded it could not accommodate Torres’s
work restrictions at the school in her existing job or in a modified
job.
Torres exhausted her paid leave benefits on June 25, 2019.
Because Torres did not advise the District that she had been
cleared to return to work, the District “resigned” Torres and
placed her on a 39-month rehire list. Torres never gave the
District a medical clearance to return to work, nor did she ever
check the District’s job postings to see if she qualified for an open
position. In 2021 Torres filed for disability and non-disability
retirement.
9
F. Torres Sues the District, Loses at Trial, and Appeals
In February 2019 Torres requested and received an
immediate right-to-sue letter from the Department of Fair
Employment and Housing (now the Civil Rights Department).5
Torres filed this action against the District, asserting causes of
action for failure to reasonably accommodate a disability,
disability discrimination, and retaliation under FEHA (Gov.
Code, § 12940 et seq.).6
The case proceeded to a jury trial, and the jury found in
favor of the District on all three of Torres’s causes of action. On
her cause of action for failure to accommodate a disability, the
jury found that Torres had a disability that limited her ability to
work, that the District knew of Torres’s disability, but that
Torres was unable to perform her essential job duties with
reasonable accommodation. On Torres’s cause of action for
disability discrimination, the jury found that the District knew
Torres had a disability that limited her ability to work, but that
Torres was unable to perform her essential job duties with or
without reasonable accommodation. On her retaliation cause of
action, the jury found Torres did not request a reasonable
accommodation or did not complain the District was not
5 “On June 30, 2022, the former Department of Fair
Employment and Housing was renamed the Civil Rights
Department.” (Rocha v. U-Haul Co. of California (2023)
88 Cal.App.5th 65, 73, fn. 4.)
6 Torres also asserted causes of action for failure to engage in
a good faith interactive process and failure to prevent
discrimination. Torres dismissed those causes of action before
trial. Statutory references are to the Government Code.
10
reasonably accommodating her. The trial court entered judgment
on the jury’s verdict.
Torres filed a motion for new trial and a motion for
judgment notwithstanding the verdict. Both motions were denied
by operation of law. Torres timely appealed.7
DISCUSSION
A. Torres’s Claims of Instructional Error Are Barred by
the Doctrine of Invited Error and Are Meritless
“Under the doctrine of invited error, when a party by its
own conduct induces the commission of error, it may not claim on
appeal that the judgment should be reversed because of that
error.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212;
see Davis v. Harano (2022) 79 Cal.App.5th 688, 692.) “The
invited error doctrine applies ‘with particular force in the area of
jury instructions.’” (Stevens v. Owens-Corning Fiberglas Corp.
(1996) 49 Cal.App.4th 1645, 1653; see Regalado v. Callaghan
(2016) 3 Cal.App.5th 582, 592.) Thus, an appellant may not seek
to reverse a judgment by arguing the trial court erred in giving
jury instructions the appellant requested. (Davis, at p. 692.)
7 Torres appealed from the judgment, the order denying her
motion for new trial, and the order denying her motion for
judgment notwithstanding the verdict. Because an order denying
a motion for new trial is not appealable, we dismiss that portion
of Torres’s appeal. (See Meinhardt v. City of Sunnyvale (2024)
16 Cal.5th 643, 653.) To the extent Torres challenges the court’s
order denying (by operation of law) her motion for a new trial, we
review that order in her appeal from the judgment. (See ibid.)
11
Torres asserts two claims of instructional error, both of
which are barred by the doctrine of invited error. First, Torres
argues the trial court erred in instructing the jury on the
elements of her cause of action for disability discrimination.
Torres concedes that the instruction correctly stated the law, but
argues that the instruction was incomplete because it did not add
the statutory definition of “essential functions” in section 12926,
subdivision (f)(1). Because Torres invited any error by asking for
the pattern jury instruction the trial court gave on this cause of
action, CACI No. 2543, she cannot challenge the instruction on
appeal. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403
[“‘Where a party by his conduct induces the commission of error,
he is estopped from asserting it as a ground for reversal’ on
appeal.”]; Burch v. CertainTeed Corp. (2019) 34 Cal.App.5th 341,
350 & fn. 6 [invited error applied where the parties jointly
requested the CACI pattern jury instructions]; Stevens v. Owens-
Corning Fiberglas Corp., supra, 49 Cal.App.4th at p. 1653 [“The
doctrine of invited error bars an appellant from attacking a
verdict that resulted from a jury instruction given at the
appellant’s request.”].)
Torres’s challenge also lacks merit. Torres does not argue
the trial court erred in refusing to give an instruction she
requested. Instead, Torres argues that the instruction she
proposed was incomplete and that the trial court should have
modified the instruction. That is not the law. “‘“Whereas in
criminal cases a court has strong sua sponte duties to instruct
the jury on a wide variety of subjects, a court in a civil case has
no parallel responsibilities.”’” (Mayes v. Bryan (2006)
139 Cal.App.4th 1075, 1090.) “‘A civil litigant must propose
complete instructions in accordance with his or her theory of the
12
litigation and a trial court is not “obligated to seek out theories [a
party] might have advanced, or to articulate for him that which
he has left unspoken.” [Citation.]’ [Citation.] ‘[A] party may not
argue on appeal that the court failed to give a specific instruction
when that party did not request such instruction.’” (Hurley v.
Department of Parks & Recreation (2018) 20 Cal.App.5th 634,
655; see Regalado v. Callaghan, supra, 3 Cal.App.5th at p. 592.)
Second, Torres argues the trial court erred in instructing
the jury on her retaliation cause of action. The court instructed
the jury that Torres had to prove she “request[ed]
accommodations for disability and/or complained about
discrimination.” Pointing to the part of the special verdict form
that asked the jury whether Torres requested a “reasonable
accommodation” or complained “about not being reasonably
accommodated,” Torres argues the jury may have been confused
by the difference between the language of the instruction and the
language of the special verdict form. Again, Torres invited the
error by requesting the instruction and approving the special
verdict form. (See Davis v. Harano, supra, 79 Cal.App.5th at
p. 692 [where the parties jointly submitted the jury instructions
and a special verdict form, the appellant could not argue an error
in the instructions or the verdict form justified reversal].) And,
as before, her argument lacks merit. There is no reasonable
probability the jury was confused by the relatively minor
language differences between the instruction and the verdict
form.
13
B. The Evidence Did Not Compel a Verdict in Torres’s
Favor
1. Standard of Review
Torres argues that substantial evidence did not support the
verdict. But that is not the correct standard of review.
Where, as here, “‘the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry
the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment.’” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th
456, 465.) Applying the substantial evidence standard of review
would inappropriately allow “‘an attack on (1) the evidence
supporting the party who had no burden of proof, and (2) the trier
of fact’s unassailable conclusion that the party with the burden
did not prove one or more elements of the case.’” (Ibid.) Instead,
when an appeal turns on the appellant’s failure of proof, “‘the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the
appellant’s evidence was (1) “uncontradicted and unimpeached”
and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.”’” (Id. at p. 466; see Argueta v. Worldwide Flight
Services, Inc. (2023) 97 Cal.App.5th 822, 840.)8
8 To the extent Torres argues the trial court erred in denying
her motion for judgment notwithstanding the verdict, the same
standard applies. (See SwiftAir, LLC v. Southwest Airlines Co.
(2022) 77 Cal.App.5th 46, 59.)
14
2. The Evidence Did Not Compel a Verdict for
Torres on her Disability Causes of Action
FEHA requires an employer to reasonably accommodate an
employee’s known physical disability unless doing so would cause
an undue hardship to the employer. (§ 12940, subd. (m)(1);
Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 714.) “The
elements of a failure to accommodate claim are ‘“(1) the plaintiff
has a disability under the FEHA, (2) the plaintiff is qualified to
perform the essential functions of the position [held or desired],
and (3) the employer failed to reasonably accommodate the
plaintiff's disability.”’” (Kaur v. Foster Poultry Farms LLC (2022)
83 Cal.App.5th 320, 346; see Atkins, at p. 719; Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th 359, 373.) “A reasonable
accommodation is a modification or adjustment to the work
environment that enables the employee to perform the essential
functions of the job he or she holds or desires.” (Nealy, at p. 373;
see Atkins, at p. 719.) FEHA does not require an employer to
eliminate an essential function of an employee’s position as an
accommodation. (Atkins, at p. 719.) “The reasonableness of an
accommodation is generally a question of fact.” (Nealy, at p. 374;
see Atkins, at p. 719.)
FEHA also makes it unlawful for an employer to
discriminate against an employee because of the employee’s
physical disability. (§ 12940, subd. (a); Atkins v. City of
Los Angeles, supra, 8 Cal.App.5th at p. 715.) To establish an
employer has discriminated against an employee on the basis of a
disability, the employee must prove he or she could perform the
essential functions of the job with or without reasonable
accommodation. (Atkins, at p. 716.)
15
On Torres’s causes of action for failure to accommodate a
disability and for discrimination on the basis of a disability, the
jury found Torres failed to prove she could perform the essential
functions of her job with reasonable accommodation. The
evidence did not compel a contrary finding. Although Torres
testified she could perform her job when the school placed her on
a temporary medical leave, ample evidence contradicted her
testimony. Most significantly, at the time Dr. Nolasco placed
Torres on medical leave, Torres did not identify a single job task
she could perform with a reasonable accommodation. And even
with the school accommodating her disability, Torres missed
nearly half of her workdays during the latter part of 2018 and in
January 2019 due to disability-related medical leave and medical
appointments.
Moreover, Dr. Spencer’s report and his testimony confirmed
Torres was unable to move her shoulders, hands, and fingers
without substantial difficulty and extreme pain. Dr. Spencer
noted Torres should not exceed the 20-minute-per-hour time limit
on typing, filing, and repetitive work, and he anticipated Torres
would not be able to perform even 20 minutes of those tasks at
times. In addition, Dr. Spencer stated Torres should not grip or
grasp any items in the workplace (including a pen or pencil),
which meant Torres could not perform any task that required
writing. Given that Torres worked as an office assistant and
most (if not all) of her essential tasks—filing, sorting, writing,
typing, opening mail, counting money, loading paper into a copy
machine, collecting books, logging information by hand or on a
computer—required her to use a computer or grip or grasp items
with her hands, the evidence did not require the jury to accept
Torres’s testimony. The evidence was neither uncontradicted nor
16
unimpeached, nor did it require a finding in favor of Torres as a
matter of law.
Torres argues that the undisputed evidence established she
worked in the same position and successfully performed the same
essential job functions for many years and that, because her “job
title and functions remained the same throughout her
employment, there was no substantial evidence that she could
not perform the essential functions of her job when she was
removed.” As discussed, however, the evidence was that Torres’s
ability to use her hands decreased over time and that Torres was
absent from work nearly half the time due to her disability in the
months leading up to her temporary medical leave. The evidence
did not preclude the jury from finding no reasonable
accommodation would have allowed Torres to perform her
essential job functions at the time Dr. Nolasco placed her on a
temporary medical leave.
Torres also argues the District improperly evaluated her
ability to perform her essential job functions by using the job
description for a senior office assistant—a position that she never
held and that required different skills than those required of an
office assistant. She emphasizes a senior office assistant,
according to the District’s job description, would have to use a
computer 40 to 80 percent of the time, whereas her job
description did not contain that requirement. As Torres points
out, both Dr. Nolasco’s January 25, 2019 conference note and the
District’s conference note from the February 7, 2019 meeting
listed Torres’s job title as senior office assistant. But the authors
of both those notes testified they mistakenly listed her job title as
senior office assistant. And both Dr. Nolasco and the District’s
risk management representative testified the District’s online job
17
listing did have a 40 to 80 percent typing requirement for the
office assistant position—a requirement Torres would be unable
to meet, given her maximum typing time of 20 minutes per hour.
3. The Evidence Did Not Compel a Verdict for
Torres on her Retaliation Cause of Action
“It is unlawful for an employer to ‘discharge, expel, or
otherwise discriminate against any person because the person
has opposed any practices forbidden under this part or because
the person has filed a complaint, testified, or assisted in any
proceeding under this part.’ [Citation.] This type of unlawful
employment practice is known simply as ‘retaliation.’ [Citation.]
To establish a prima facie case of retaliation under FEHA, an
employee must show that (1) she engaged in a ‘protected activity,’
(2) the employer subjected her to an adverse employment action,
and (3) a causal link existed between the protected activity and
the employer’s action.” (Bailey v. San Francisco Dist. Attorney’s
Office (2024) 16 Cal.5th 611, 636.) It is also unlawful to retaliate
or otherwise discriminate against an employee for requesting an
accommodation for a disability, regardless of whether the request
was granted. (§ 12940, subd. (m)(2).)
Torres claimed the District retaliated against her for
requesting accommodation for her disability and complaining
about discrimination. The jury found Torres failed to prove that
she requested a reasonable accommodation for her disability or
that she complained about not being reasonably accommodated.
The evidence did not compel a contrary result.
First, there was no evidence Torres ever complained the
District did not reasonably accommodate her before Dr. Nolasco
placed Torres on temporary medical leave on January 25, 2019—
18
the date Torres claims the District terminated her employment.
Torres does not argue otherwise; instead, she cites evidence she
complained the District did not reasonably accommodate her
after Dr. Nolasco placed her on temporary medical leave.
Complaints by an employee after an employer’s adverse
employment action cannot cause the adverse employment action.
(See, e.g., Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1192-1193 [to establish a prima facie case of
retaliation under FEHA, plaintiffs must show ‘“that (1) they
engaged in activities protected by the FEHA, (2) their employers
subsequently took adverse employment action against them, and
(3) there was a causal connection between the protected activity
and the adverse employment action’”], italics added.)
Second, the evidence regarding Torres’s other two claims
against the District also did not compel a finding in Torres’s favor
on her retaliation claim. Specifically, Dr. Spencer’s report and
testimony concerning Torres’s medical condition at the time
Dr. Nolasco placed her on temporary medical leave did not
compel a finding Torres requested a reasonable accommodation.
As discussed, the jury reasonably found, based on the medical
evidence, Torres’s requested accommodation was not reasonable
because no accommodation would have allowed her to perform
her essential job functions. (See McCormick v. Public Employees’
Retirement System (2019) 41 Cal.App.5th 428, 440 [“‘A reasonable
accommodation is a modification or adjustment to the work
environment that enables the employee to perform the essential
functions of the job he or she holds or desires.’”]; Nealy v. City of
Santa Monica, supra, 234 Cal.App.4th at p. 373 [same].) The
evidence did not compel a contrary finding.
19
DISPOSITION
The judgment and order are affirmed. Torres’s appeal from
the trial court’s order denying her motion for new trial by
operation of law is dismissed. The District is to recover its costs
on appeal.
SEGAL, J.
We concur:
MARTINEZ, P. J.
STONE, J.
20