Martinez v. So. Cal. Edison CA4/1

Filed 5/20/21 Martinez v. So. Cal. Edison CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
CYNTHIA MARTINEZ, D078061
Plaintiff and Appellant,
v.
(Super. Ct. No. CIVDS1723979)
SOUTHERN CALIFORNIA EDISON
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Bryan F. Foster, Judge. Affirmed.
Marcus Jackson for Plaintiff and Appellant.
Tanya A. Guzman for Defendant and Respondent.
Cynthia Martinez sued her employer, Southern California Edison
Company (SCE), claiming SCE failed to accommodate her panic disorder
disability and engage in a good faith interactive process. After a trial, the
jury found she did not prove either claim, and the court entered judgment in
SCE’s favor. The court later denied Martinez’s motion for judgment
notwithstanding the verdict (JNOV).
On appeal, Martinez contends the court erred by denying her JNOV
motion and refusing several of her proposed special instructions. We affirm.
Martinez did not meet her appellate burden to show prejudicial instructional
error or that the court erred in denying her JNOV motion.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Summary1
In 2007, Martinez had a severe panic attack while driving on the
freeway. She then avoided freeway driving whenever possible.
Two years later, in 2009, Martinez began working for SCE as a
business analyst in SCE’s Rancho Cucamonga office, which was six miles
from where she was living.
Five years later, in June 2014, Martinez transferred to a different
business analyst position with SCE’s vegetation management division. This
division is responsible for keeping trees and other vegetation away from
power lines. She was assigned to work in SCE’s San Bernardino office in its
vegetation management resource center. At the time she lived in Fontana,
which was about nine miles from the San Bernardino office. She commuted
to work using surface streets.
For the next 12 years, Martinez continued to work in the same position
in the San Bernardino office. Then during spring 2016, she and her husband
discussed moving to Murrieta, which would result in a substantially longer
commute of more than 45 miles each way.
Before the move, in April 2016, Martinez asked her supervisor whether
she could relocate to a closer office if she moved to Murrieta. She did not say
1 Under settled appellate rules, we summarize the evidence in the light
most favorable to the jury verdict. (See Collins v. County of San Diego (2021)
60 Cal.App.5th 1035, 1048 (Collins).)
2
anything about a disability. Her supervisors did not approve the relocation
because they found her job duties required she physically remain with her
work team and the paper files. But they expressed willingness to adjust her
start and stop times to help with the commute.
Four months later, in August 2016, Martinez and her husband
purchased a new home in Murrieta. She testified their motivation for
making the move was “two-fold”: (1) her husband’s job location might move
to the Murrieta area (it eventually did not move); and (2) she had not had a
panic attack “in years” and she felt the move would provide her with a “good
opportunity” to use “exposure therapy” and see whether she had overcome
the problem. She said the move would provide “an opportunity for me to
learn from what was bothering me” and “face [my] fears” about freeway
driving. Martinez acknowledged she did not visit the new house until the
escrow period, nor did she ever “practice[ ]” the drive from Murrieta to the
San Bernardino office, or consult with a doctor about her panic disorder
before making the move.
She testified that when she first visited the house during escrow, she
experienced panic symptoms while she was on the freeway. She thus exited
the freeway and used side streets.
After escrow closed, on her first day back to work, on August 22, she
asked her supervisor to be relocated (with the same job) to an SCE office
closer to her new home (either SCE’s Wildomar or Menifee office). This time
she based her request on the fact that she suffered panic attacks when
driving on the freeway during her new commute. She gave her supervisor an
August 11, 2016 letter from her doctor, stating he has been treating Martinez
for the past two months for “anxiety disorder” and he recommends she “avoid
situations that may aggravate her anxiety symptoms or panic attacks.” He
3
said that Martinez “reports that driving a vehicle for long distances,
especially on the freeways, causes her to have increased anxiety and possibly
result in panic attacks,” and therefore he “recommend[s] that her job be
located close to her home . . . .”
Martinez’s supervisor responded that she must follow SCE policy by
requesting work accommodations through Sedgwick, a third party disability
claims administrator. Martinez replied, “I was hoping that I would not have
to go through a formal process and that my group would just relocate me.
But I am gathering that this is not the direction that we are going. I will
contact Sedgwick today.”
Martinez then submitted a disability claim to Sedgwick, asking to be
relocated to an office closer to her new home based on her panic disorder
condition. She testified she found her commute to the San Bernardino office
to be “hellish” and it made her anxious all the time because of the stress of
thinking about the commute and the possibility of a panic attack.
Under governing policies, Sedgwick then communicated Martinez’s
request to her supervisors and individuals within SCE’s human resources
and disability management divisions.
These individuals gave serious consideration to Martinez’s request.
Carol Wood, manager of the disability management unit, urged Martinez’s
supervisors to consider trying to accommodate her request, but expressed
understanding that an accommodation may not be possible given the nature
and type of work performed by Martinez and the vegetation management
team.
After a full consideration of Martinez’s request, her supervisors denied
the request because they found Martinez could not complete or perform her
core work if she was to relocate to another location. This determination was
4
based on two considerations. First, the supervisors determined that at least
75 percent of her tasks required Martinez to work at the San Bernardino
facility with physical files that occupy close to 200 filing cabinet drawers.
Second, the supervisors found Martinez’s duties required she have
“continuous collaboration with and instruction from” two other analysts who
worked with Martinez in the San Bernardino facility. The supervisors
concluded that Martinez’s “physical presence” at the San Bernardino facility
was “fundamental” to her job.
Martinez then contacted Deborah Goodwin, who worked in SCE’s
disability management unit, and Martinez expressed disagreement with her
supervisors’ decision. In an email, Goodwin responded that the reason for the
denial was that SCE “does not offer job accommodations for getting to work.”
But Goodwin (who was supervised by manager Wood) testified she had not
spoken with Martinez’s supervisors before sending this email and testified
that SCE had no policy with regard to whether it would accommodate a
commute.
In her email, Goodwin proposed various alternatives for assisting
Martinez’s commute, including carpooling or vanpooling or changing work
schedules to help with commute times. Goodwin also informed Martinez that
if she “had a condition that flares up, you may also open an intermittent
FMLA [Family Medical Leave Act] claim to provide . . . time off of work,”
noting that FMLA “can provide up to 480 hours of protected time off [and]
can provide protection for you in the event you have a flare [up] and need to
miss a day of work or just a couple of hours.” She also noted that if these
options were not viable and Martinez needed to take additional time off work,
she “may need to open a disability claim through Sedgwick.”
5
Martinez responded that Goodwin’s suggestions were not “acceptable
alternatives” for her. Martinez testified she never explored the possibility of
a vanpool or carpool because she did not believe those alternatives would
work. She claimed her panic symptoms occurred whether she was the driver
or passenger.
Martinez then continued to request that SCE reconsider its decision.
She repeatedly complained to her supervisors about the difficulty of having to
commute 45 miles with her anxiety/panic attack disorder. She wrote a
lengthy letter to one supervisor, explaining the nature of her anxiety disorder
and stating she made the decision to move “hoping that somehow, I would be
able to manage adjusting my drive from an 8 mile side street commute, to a
45 mile, mostly freeway drive. Unfortunately, I have not experienced the
results I sought. Each morning and afternoon, I face the knowledge that
should a panic attack occur, I may not be able to safely control my
vehicle . . . .” She told her supervisors she disagreed with their conclusions
that the team must remain together for work reasons, asserting she was
generally assigned different work (weed abatement) from the other team
members (who worked on line-clearing). As to the physical files, she said “our
internal pony delivery system could easily transport [the physical files] to any
desired location.”
Meanwhile, Martinez continued to commute to work and admitted that
once she arrived at work she was generally able to fully perform her duties.
But on a few occasions when she arrived at work she was too upset and
anxious to work.
In October 2016, SCE announced the San Bernardino office would be
closing due to earthquake safety concerns. That decision triggered Martinez
to reassert her request to relocate to SCE’s Menifee or Wildomar offices that
6
were closer to her home. Matthew Deatherage, who supervised Martinez’s
supervisors, denied the request, stating: “[Y]our request to work in a different
location has been reviewed thoroughly and business needs dictate that it
cannot be accommodated at this time. . . .” Martinez responded by strongly
disagreeing with the business justifications, reasserting that she personally
did not believe she needed to be in the same office as the two coworkers.
In November 2016, an SCE job was posted for a contracts manager at
the Wildomar facility. Martinez applied for the job and believed she was
“very qualified” for the position. Martinez admitted, however, the job would
have been a promotion. SCE did not give her an interview for this position.
On Tuesday, November 22 (Thanksgiving week), Martinez asked her
supervisor if she could work out of the Wildomar office the next day to avoid
“what is more than likely to be a very busy and horrible ride home.” Her
supervisor denied this request.
In the next few months, Martinez would often come to work, but had
many absences.
In about February 2017, Martinez applied for another SCE open
position (civil construction analyst) located in the Wildomar office. Eighty-six
individuals applied for this position, and Martinez was one of six applicants
selected to interview for the position. After the interview, she was ranked
fourth out of the six applicants, and another candidate was ultimately
selected. She was later told she was generally qualified for the position, but
did not have the technical skills needed for the job (including advanced Excel
and MS Access skills). The written job description confirms that these skills
were required for the job.
In about March 2017, SCE closed the San Bernardino office (because of
the earthquake safety issues) and transferred the vegetation management
7
resource center team to SCE’s Redlands office. All of the physical records
were also relocated to this facility. This office was also about 45 miles from
Martinez’s Murrieta home.
On the first day she was required to report to the Redlands office,
March 27, 2017, Martinez arrived at work in a highly emotional state,
“sobbing uncontrollably” throughout the day, and stating she would be
unable to do this daily commute. SCE made efforts to assist her and help her
find someone who was willing to drive her home.
Two days later, Martinez returned to work at Redlands, and said her
doctor gave her additional medications. Martinez told her supervisor she did
not want to take time off work and wanted to see if she could make it work
with the new commute. She said she found a better route that might work.
But she again asked to relocate to the Menifee office, and her supervisor
denied this request.
At about this time, Martinez texted with a coworker in which Martinez
claimed she was “ok” with the drive, and that she “was sure that she would
adjust like everyone else.”
Shortly after, Martinez’s attorney filed a discrimination claim with the
California Department of Fair Employment and Housing. Martinez claimed
she was discriminated against based on her panic disorder disability.
A few days later, Martinez again asked her supervisors if she could
relocate to an SCE office closer to her home. She said she had a difficult
night and the anxiety of the morning’s commute had resulted in abdominal
pains. She reiterated that the drive is “very exhausting and debilitating, due
to the medically confirmed anxiety disorder from which I suffer.” She said
that taking FMLA time off results in her getting less pay and having to use
vacation pay and floating holidays. She said she planned to take her laptop
8
home with her, and again stated her willingness to work in either the
Wildomar or Menifee facilities.
Martinez’s supervisor told her not to take her laptop computer home.
He explained her work duties and her position as a nonexempt employee
require her to come into the office to complete her work, “and there is only
one location where we do this work, and right now it is in the Vegetation
Management Resource Center in Redlands.” He said, “It is our expectation
that you leave [the computer] in your work area in a safe and secure
location . . . . [¶] If you are unable to come into work, we advise and
encourage you to use your FMLA as needed. As we’ve discussed for many
months, we do not want you to get behind the wheel when it is unsafe. . . .”
SCE’s policy was that nonexempt employees were not permitted to bring
laptops home because employees were under “strict oversight to help ensure
they report all overtime, get approval for overtime, weren’t expected to
answer calls after hours, aren’t expected to write and read work-related
emails when they are not being paid for that.”
Two months later, in June 2017, Martinez’s doctor advised her that she
should take a leave of absence because of her continued anxiety and mental
and physical health problems related to the anxiety. Based on this advice,
she took a leave of absence beginning in June 2017.
During the next several months while Martinez remained on disability
leave, SCE’s disability management unit continued to explore the issues
raised by Martinez’s disability accommodation request and her disability
claims for being off work. In so doing, the unit asked Sedgwick to obtain an
independent psychiatric evaluation of Martinez. Sedgewick then retained Dr.
David Block, who met with Martinez and reviewed documents relating to her
disability claim.
9
Based on this review, Dr. Block issued a report on August 21, 2017, in
which he concluded Martinez suffers from a “Panic Disorder,” which is
“almost entirely related to fears of driving on highways.” He opined that
based on this diagnosis, during the next four to six weeks, “it is not advisable
that [she] have to travel by car on a freeway to anywhere that she works.
This claimant is a good candidate for telecommunicating to work, if possible,
while she gets her anxiety related to freeway driving under better control.”
He said that Martinez “is able to perform the substantial and material duties
of her usual occupation,” but advised “that she be allowed to work from home
or at a site near her home that she can easily get to without getting on
highways.” He said Martinez’s need to work close to home was temporary
and should be reevaluated after she had the opportunity to work with mental
health professionals.
After reviewing this report, SCE’s disability management unit made
efforts to determine whether some of Martinez’s work could be temporarily
performed remotely from the Wildomar office. Disability management
employee Kathy Campbell performed her own analysis of Martinez’s work
primarily by reviewing files and speaking with Martinez’s coworkers, and
concluded that at least on a temporary basis, “the majority of [Martinez’s]
work is or can be performed via online tools . . . .” Based on this review and
Dr. Block’s evaluation, Campbell recommended that SCE permit Martinez to
work at a site close to her home for 90 days and, during that period, evaluate
whether this work accommodation can satisfy her supervisors’ needs.
Although Martinez’s supervisors did not believe that all or most of her work
could be effectively performed in a different office, they agreed some of the
work could be performed at a remote location.
10
While this reevaluation was being performed, Martinez filed a lawsuit
against SCE in the superior court, alleging disability discrimination,
retaliation, and other related claims.
Two months later, SCE permitted Martinez to work temporarily in the
Wildomar office close to her home. She began working in that facility on
February 9, 2018. Because she did not have access to the physical files,
Martinez could not, and did not, perform many of her prior duties.
Additionally, some of Martinez’s job duties had changed in the time since she
had first requested the accommodation. Martinez admitted at trial that her
job responsibilities “changed immensely” after she began working in the
Wildomar office.
In April 2018, SCE made the decision that Martinez could permanently
work from the Wildomar office.
Trial
Martinez’s complaint alleged five causes of action under the Fair
Employment and Housing Act (FEHA): (1) disability discrimination;
(2) failure to accommodate a disability; (3) failure to engage in a good faith
interactive process; (4) failure to prevent discrimination; and (5) retaliation.
In February 2019, these claims were tried before a jury. At the time,
Martinez remained a SCE employee.
Martinez’s counsel presented her case primarily through Martinez’s
own testimony and the testimony and emails of various SCE personnel (who
were called as adverse witnesses). In her testimony, Martinez described her
move and the reasons for her move; her initial panic attacks and then her
ensuing anxiety while driving on the freeways; the difficulty of her commute
to San Bernardino and then Redlands; and her disagreements with her
supervisors’ conclusions that her work required her to be physically present
11
at the San Bernardino or Redlands facilities. She claimed she lost 40 percent
of her salary during the time she was on disability leave (from June 2017
through February 2018).
In defense, SCE’s presented evidence (summarized above) that the core
aspects of Martinez’s job required her physical presence at San Bernardino
and then Redlands, and that its later decision to allow her to relocate was
based on a determination that some (but not all) of her tasks could be
performed in a different office and that her work changed when she worked
from the Wildomar office.
Martinez did not designate counsels’ opening statements or closing
arguments as part of the appellate record, and therefore we do not know the
nature of the theories argued by Martinez’s counsel or SCE’s counsel.
Before the case was submitted for the jury’s determination, the court
granted nonsuit on the retaliation and disability discrimination claims, and
found the failure to prevent discrimination was the same claim as the failure
to accommodate discrimination.
Thus, the jury was instructed on two theories of liability: (1) failure to
reasonably accommodate Martinez’s disability; and (2) failure to engage in an
interactive process. The court used the standard CACI instructions to define
and describe the elements of each of these claims. (See CACI Nos. 2541,
2542, 2543, 2599, 2546.) These instructions included an explanation of the
essential elements of a reasonable-accommodation claim; the meaning of a
“reasonable accommodation”; examples of reasonable accommodations;
factors in deciding whether the employee was able to perform the essential
job duties; and the elements of a failure-to-engage-in-interactive-process
claim.
12
The court refused to instruct on several special pinpoint instructions
proposed by both Martinez and by SCE. The court found these instructions
were covered by the CACI instructions, and/or appeared to be “getting into
too many specifics” and “telling the jury” what it should decide. The court
said each counsel was free to argue to the jury the points in their proposed
special instructions, but that the CACI instructions provide a “good
statement as to what the law is.”
After deliberating for less than two days, the jury returned a
unanimous special verdict in SCE’s favor on both causes of action.
As to the failure-to-accommodate claim, the jury answered “Yes” to the
following questions: (1) “Did . . . Martinez have a mental disability that
limited her ability to travel, breathe and/or work” (italics added); (2) Did
[SCE] know that . . . Martinez had a mental disability that limited her ability
to travel, breathe and/or work?” (italics added); and (3) “Was . . . Martinez
able to perform the essential duties of her job with reasonable
accommodation for her mental disability?” But the jury answered “No” to the
question “Did [SCE] fail to provide reasonable accommodations for . . .
Martinez’s disability?”
As to the failure to engage in interactive-process claim, the jury
answered “Yes” to the following question: “Did . . . Martinez request that
[SCE] make reasonable accommodation for her mental disability so that she
would be able to perform the essential job requirements?” But the jury
answered “No” to the question, “Was . . . Martinez willing to participate in an
interactive process to determine whether reasonable accommodation could be
made so that she would be able to perform the essential job requirements?”
13
Based on the “No” responses on each claim, the court found Martinez
was not entitled to recover on either cause of action and entered judgment in
SCE’s favor.
Martinez then moved for a JNOV, arguing the undisputed evidence
established she proved her claims as a matter of law and that the jury
“ignor[ed] the clear undisputed facts in the case.” The court denied the
motion.
On appeal, Martinez challenges the court’s denial of her JNOV motion
and its refusal to give four of her proposed special instructions. We first
consider the JNOV motion and then address Martinez’s challenges to the
court’s rulings on the jury instructions.
DISCUSSION
I. JNOV Motion
A. Review Standards
An appeal from the denial of a JNOV motion “is essentially the same as
appealing the judgment itself for a lack of substantial evidence.” (IIG
Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) A trial court may grant
the motion only if it appears from the evidence, viewed in the light most
favorable to the party securing the verdict, that there is no substantial
evidence in support. (Collins, supra, 60 Cal.App.5th at p. 1048.) The court
must deny the motion if there is any substantial evidence, contradicted or
uncontradicted, supporting the jury’s verdict. (Ibid.)
On appeal, we consider the issue de novo under the same standards.
(Collins, supra, 60 Cal.App.4th at p. 1048.) Like the trial court, we may not
reweigh the evidence or judge witness credibility. (Ibid.; Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313-314.) We resolve all
conflicts in the evidence and draw all reasonable inferences in favor of the
14
verdict. (Collins, at p. 1048.) If the evidence is conflicting or if several
reasonable inferences may be drawn supporting the jury’s verdict, we must
affirm the order denying the motion. (Ibid.)
Under these principles, we evaluate Martinez’s challenges to the jury’s
findings on her (1) failure-to-accommodate claim; and (2) failure-to-engage-in-
interactive-process claim.
B. Failure-to-Accommodate Claim
1. Applicable Law
To establish a failure-to-accommodate claim, a plaintiff must prove
(1) she has a disability covered by the FEHA; (2) she can perform the
essential functions of the position to which accommodation is sought; and
(3) the employer failed to reasonably accommodate her disability. (Jensen v.
Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256-257.) The reasonableness
of an employer’s action is a question of fact that must be decided on a case-by-
case basis. (See Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359,
374 (Nealy); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935,
954.)
Under the FEHA, “ ‘reasonable accommodation’ ” means “ ‘ “a
modification or adjustment to the workplace that enables the employee to
perform the essential functions of the job held or desired.” ’ ” (Atkins v. City of
Los Angeles (2017) 8 Cal.App.5th 696, 719 (Atkins), italics added.) “FEHA
does not require employers to eliminate essential functions of a job to
accommodate a disabled employee.” (Ibid.) “The employee’s burden includes
‘showing he or she can perform the essential functions of the job with
accommodation, not that an essential function can be eliminated altogether
to suit his or her restrictions.’ ” (Id. at p. 720.)
15
2. Analysis
The jury found Martinez did not prove SCE failed to reasonably
accommodate her disability, and thus Martinez could not recover on her
FEHA failure-to-accommodate claim. Martinez argues this finding is
unsupported because it is undisputed SCE did not grant her relocation
request from August 2016 until February 2018. In asserting this argument,
Martinez improperly disregards SCE’s evidence and misconstrues an
employer’s obligation when a requested job accommodation precludes the
employee from performing the essential duties of the position.
SCE presented evidence that Martinez’s relocation would have
precluded her from performing her essential job duties. Martinez’s direct
supervisor testified Martinez’s work required that she remain in the same
location as others who worked for the vegetation management team, and
therefore her physical presence was needed for her to perform the essential
functions of her job.2
The supervisor based this decision on facts showing (1) Martinez’s work
requires she have access to voluminous physical files (that were not available
in electronic form) at the vegetation management resource center at SCE’s
San Bernardino office (and later at the Redlands office); and (2) the
importance of working alongside two other team members who also needed
access to the same files and with whom Martinez was expected to work,
including to cover their overflow work. We infer from the verdict that the
jury found this evidence credible, and rejected Martinez’s contrary evidence.
2 Martinez complains that the supervisor did not use the phrase
“essential function” in describing her work at the San Bernardino facility.
However, the substance of his testimony supported this fact.
16
In challenging the jury’s finding, Martinez discusses her own testimony
that she did not believe she needed to be physically present at the San
Bernardino office. However, as an appellate court, we cannot reweigh the
evidence or reevaluate the credibility of the witnesses. (Collins, supra, 60
Cal.App.5th at p. 1048.) Similarly, Martinez’s reliance on SCE employee
Campbell’s conclusions that a majority of Martinez’s work could be performed
remotely does not defeat the jury’s factual findings. There is evidence in the
record showing Campbell conducted only a superficial review of Martinez’s
duties, was focused mainly on a temporary relocation, and was acting as an
advocate for Martinez. On this record, the jury had a sound basis to credit
the testimony of Martinez’s supervisors, rather than Campbell’s conclusions
on this issue.
Martinez alternatively argues the jury was legally required to find the
requested accommodation was reasonable because SCE eventually granted
the request. However, SCE presented evidence that it later agreed to permit
Martinez to work from the Wildomar facility despite that she would not be
able to perform the essential functions of her prior job. The evidence showed
that Martinez’s supervisors structured a somewhat different position for
Martinez where she would not have access to the physical files needed in her
prior job. SCE’s election to alter the requirements of Martinez’s job does not
mean its earlier refusal to do so violated the FEHA. Although the jury could
have agreed with Martinez that SCE’s subsequent decision to permit the
relocation shows that its earlier conclusions were pretextual, it was not
required to do so.
Moreover, the evidence showed that early in the process SCE did offer
other accommodations that would permit Martinez to continue to perform the
essential functions of her job, including by altering her commute hours,
17
allowing her time off when she was feeling anxious about the commute, and
providing her with carpooling and vanpool options. Although Martinez
testified she did not believe these were viable options, the jury was entitled to
find these options could have effectively addressed Martinez’s disability
issues if she made the effort to try them.
Although not a dispositive factor, the jury was also entitled to consider
the fact that Martinez’s supervisors first made clear to her that they would
not approve her relocation request because her work required her to be
physically present with the physical files and with the other team members.
Martinez then made the voluntary decision to move 45 miles away. It was
not until after escrow closed on her new house that Martinez raised the
disability accommodation request. Thus, it was Martinez’s voluntary actions
that created, or at least contributed to, the need for an accommodation. As
discussed in section II.E. below, this factor is a relevant consideration in
evaluating the reasonableness of an employer’s accommodation actions.
Further, an employer need not accommodate a disability that is not
relevant to an employee’s ability to perform the job. Put otherwise, if the
employee is capable of performing the job despite the disability, the employee
is not entitled to an accommodation. (See Brumfield v. City of Chicago (7th
Cir. 2013) 735 F.3d 619, 632-633.) SCE presented evidence that Martinez
was able to perform the job once she was at the jobsite. This evidence
included Martinez’s testimony and her statements to the defense’s expert
that she was able to perform her job duties (although she sometimes left work
early because of her anxiety in thinking about the commute home). Although
Martinez also presented contrary evidence—that she was extremely anxious
and upset on a few occasions when she arrived at work after a difficult drive
18
and thus could not perform her job—the jury had a reasonable basis to
decline to credit this evidence.
In her reply brief, Martinez claims she offered “a mountain of
testimony and emails regarding numerous occasions where her panic attacks
were so bad” that she missed work or was too upset to work. In support, she
cites only two portions of her testimony referring to two specific days in
which she was upset at work or did not wish to come into the office. It was
for the jury to evaluate Martinez’s testimony and decide whether she needed
accommodations to perform the essential portions of her job.
Martinez alternatively argues the jury was compelled as a matter of
law to find in her favor on the reasonable accommodations question based on
her request that she be permitted to work from home “on an as-needed basis.”
However, the jury had a reasonable basis to find SCE was not required to
approve this request because—as discussed above—the evidence showed
Martinez could not perform her essential job duties away from the San
Bernardino office (and later Redlands office). Additionally, the record does
not support that Martinez made this general request, or that Martinez’s
counsel argued this theory to the jury. This evidence shows at most Martinez
asked to work away from the office a few times, but it does not show that
Martinez ever made a general request to work away from the office on an “as-
needed” basis because of her disability.
Martinez next argues the evidence did not support the verdict on the
failure-to-accommodate claim because she was not given “preferential”
consideration for the two other positions for which she applied.
Under California law, a disabled employee “is entitled to preferential
consideration of reassignment to a vacant position over other applicants and
existing employees.” (Cal. Code Regs., tit. 2, § 11068, subd. (d)(5); see Raine
19
v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.) However, this
reassignment obligation does not require the employer to promote the
employee to a new job with new duties and higher pay. (Atkins, supra,
8 Cal.App.5th at p. 721; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th
1376, 1389; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745.)
Moreover, “ ‘[a] reassignment . . . is not required if ‘there is no vacant position
for which the employee is qualified.’ ” (Raine, at p. 1223.)
Under these principles, the jury had a valid basis to find that SCE had
no obligation to give Martinez preferential treatment for the two open
positions at the Wildomar office. It was undisputed the first job would have
been a promotion, and the evidence supported Martinez did not have the
technical skills to perform the second job.
C. Failure-to-Engage-in-Interactive-Process Claim
Martinez next challenges the sufficiency of the evidence to support the
jury’s finding that she was unwilling to participate in the interactive process.
In response to a request for a disability accommodation, an employer
has a duty to “engage in a timely, good faith, interactive process with the
employee . . . to determine effective reasonable accommodations.” (Gov. Code
§ 12940, subd. (n).) “[T]he interactive process is designed to bring the two
parties together to speak freely and to determine whether a reasonable,
mutually satisfactory accommodation is possible to meet their respective
needs.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62.)
During this time “[b]oth employer and employee have the obligation ‘to keep
communications open’ and neither has ‘a right to obstruct the process.’ ”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014.)
In this case, the jury found Martinez did not meet her burden to prove
she was willing to participate in an interactive process to identify a
20
reasonable accommodation to permit her to perform the essential job
requirements. Substantial evidence supported this finding.
SCE presented evidence it engaged in efforts to discuss options with
Martinez to accommodate her disability that made her commute more
difficult. Those alternatives included carpooling, vanpooling, and shifting
Martinez’s work hours to make the commute easier. SCE also presented
evidence that Martinez was unwilling to consider any of these options and
instead her sole objective was to work closer to her new home. Based on this
evidence, the jury had a sound basis to find Martinez did not meet her burden
to show she was willing to participate in a reasonable interactive process.
Martinez argues the undisputed evidence showed she repeatedly and
strenuously raised the issue of her disability with her SCE supervisors, and
therefore posits that she was “[c]learly . . . willing to have a dialog about
accommodating her driving disability . . . .” However, the fact that she
repeatedly raised the issue does not mean she was willing to engage in an
interactive process. The jury had a reasonable basis to conclude that
Martinez repeatedly raised the issue solely in an effort to convince SCE to
agree to her proposal—working at a facility closer to her home. A one-sided
demand—even if it is made numerous times—does not necessarily reflect a
willingness to reach a reasonable and mutually satisfactory accommodation.
Martinez argues that SCE failed to satisfy its interactive-process
obligations because disability manager Campbell did not speak with her
before performing an analysis of her work. However, Campbell’s role at that
time was to revaluate Martinez’s requested accommodation (a reevaluation
that ultimately favored Martinez), and not necessarily to engage in an
interactive discussion. Moreover, under the special verdict instructions, the
jury never reached the issue of whether SCE properly engaged in the
21
interactive process. The jury was first asked whether Martinez proved she
“was willing to participate in an interactive process to determine whether
reasonable accommodation could be made so that she would be able to
perform the essential job requirements?” Based on the “No” answer, the jury
was told to go no further in the special verdict form.
II. Claimed Instructional Errors
A. Review Standards
Upon request, a party is entitled to correct, nonargumentative
instructions on every theory of her case that is supported by substantial
evidence. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019)
39 Cal.App.5th 995, 1021 (Crouch); Rosenfeld v. Abraham Joshua Heschel
Day School, Inc. (2014) 226 Cal.App.4th 886, 898.)
However, a “party is not entitled to have the jury instructed in any
particular phraseology and may not complain on the ground that [the]
requested instructions are refused if the court correctly gives the substance of
the law applicable to the case.” (Hyatt v. Sierra Boat Co. (1978)
79 Cal.App.3d 325, 335.) The trial court’s duty “is fully discharged if the
instructions given by the court embrace all the points of the law arising in
the case.” (Ibid.; see Alamo v. Practice Management Information Corp. (2013)
219 Cal.App.4th 466, 475 (Alamo).)
“Instructions should state rules of law in general terms and should not
be calculated to amount to an argument to the jury in the guise of a
statement of law. [Citations.] [I]t is error to give, and proper to refuse,
instructions that unduly overemphasize issues, theories or defenses either by
repetition or singling them out or making them unduly prominent although
the instruction may be a legal proposition.” (Fibreboard Paper Prods. Corp.
22
v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718; see Alamo,
supra, 219 Cal.App.4th at p. 475.)
We review de novo an instructional error challenge. (Crouch, supra,
39 Cal.App.5th at p. 1021.) When a party contends a court erred in refusing
an instruction, we view the evidence in the light most favorable to the
requesting party. (Ibid.)
An instructional error is not reversible unless the appellant establishes
the error was prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 580.) “Instructional error in a civil case is prejudicial ‘where it seems
probable’ that the error ‘prejudicially affected the verdict.’ ” (Ibid.) Actual
prejudice must be shown and is assessed in the context of the trial record,
including “(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.) This prejudice determination
“ ‘depends heavily on the particular nature of the error, and its effect on the
appellant’s ability to place his or her full case before the jury.’ ” (Norman v.
Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1248-1249,
italics omitted.)
Under these standards, we consider Martinez’s contention that the
court erred in refusing to instruct on four of her proposed special instructions.
B. Special Instruction No. 4: Adjustments to Accommodation Policies
Proposed Special Instruction No. 4 read: “The essence of the concept of
reasonable accommodation is that, in certain instances, employers must
make special adjustments to their policies for individuals with disabilities.”
This instruction was unnecessary because the subject matter was
covered by the given CACI instructions. Using CACI No. 2542, the court told
the jury, “A reasonable accommodation is a reasonable change to the
23
workplace that allows an employee with a disability to perform the essential
duties of the job,” and identified numerous examples of reasonable
accommodations. Under this instruction, the jury would have understood
that an employer has the obligation to make adjustments to their policies if
needed to provide a reasonable accommodation.
Martinez argues her proposed instruction was necessary because a
“major defense argument, which the jury appears to have accepted based on
two questions the jury submitted during witness examinations, is that there
was no legal requirement to accommodate a commute to work.” This
argument contains several unsupported assumptions.
First, there is no support in the record that SCE argued that there was
no legal requirement to accommodate a commute to work. Because Martinez
did not include the closing arguments in the appellate record, we have no
basis to know what defense counsel argued.
Second, several SCE witnesses acknowledged at trial that SCE did not
have a policy prohibiting disability accommodations relating to commutes.
Although two SCE employees told Martinez that SCE did not accommodate
commutes, these witnesses (and SCE’s disability manager Wood)
acknowledged that SCE did not have a policy to this effect. Consistent with
this testimony, the evidence showed that in September 2016 Wood instructed
Martinez’s supervisors to accommodate Martinez’s relocation request if it
would not interfere with her performing the essential tasks of her job.
Third, there is no support for Martinez’s assertion that the jury
accepted the argument that there is no legal requirement to accommodate a
commute. Martinez relies on two juror questions pursuant to the court’s
policy allowing jurors to submit written questions to the attorneys during the
evidentiary phase of the trial. Martinez does not cite to the record to show
24
which questions these were. In any event, a juror’s questions during a
witness’s testimony before the jury is instructed, does not establish the juror
had accepted any arguments or evidence before the deliberations began.
C. Special Instruction No. 5: Commute Accommodations
Proposed Special Instruction No 5 read: “Employers must provide
accommodations even for an employee’s disability which does not limit their
ability to perform their job duties but impacts their ability to get to work or
their job attendance.” (Italics added.)
As worded, this instruction is not a correct statement of the law. The
issue whether and when and to what extent an employer must provide
accommodations for a disabled employee is a reasonableness standard, and
the court would have erred in instructing the jury that SCE “must” provide
accommodations under the identified circumstances.
The decisions relied upon by Martinez do not support an instruction
that an employer must accommodate a disabled employee’s claimed commute
difficulties. (See, e.g., Livingston v. Fred Meyer Stores, Inc. (9th Cir. 2010)
388 Fed.Appx. 738 (Livingston); Sargent v. Litton Systems, Inc. (N.D.Cal.
1994) 841 F.Supp. 956 (Sargent); Humphrey v. Memorial Hospitals Assn. (9th
Cir. 2001) 239 F.3d 1128 (Humphrey).)
In Livingston, a visually impaired individual asked her employer for a
modified work schedule because she could not walk or drive safely after dark.
(Livingston, supra, 388 Fed.Appx. at p. 739.) After the employer refused, the
employee sued under the American Disabilities Act (ADA), and the district
court granted summary judgment in the employer’s favor based on its
conclusions that (1) the employee was not disabled because her vision
impairment did not substantially limit any major life activity; and (2) the
25
duty to accommodate does not as a matter of law extend to “ ‘commute-
related limitations.’ ”3 (Id. at pp. 739, 740.)
The Ninth Circuit reversed. (Livingston, supra, 388 Fed.Appx. at
pp. 739-741.) On the first issue, the court stated “[i]t is beyond dispute that
‘seeing’ is a major life activity.” (Id. at p. 740.) On the second issue, the court
recognized an employer may have a duty under the ADA to accommodate a
disabled employee’s limitations in getting to and from work, and found the
employee presented sufficient evidence to preclude summary judgment
because she presented evidence supporting that her specific requested
accommodation—“a modified schedule that permit[ted] her to work an earlier
shift”—was reasonable given that the employer “did not experience any
hardship when [the employee] worked a modified schedule the previous
year.” (Id. at p. 741.)
In Sargent, an employer urged the court “to adopt a bright line rule
[under the FEHA] that employers have no duty to get their employees to
work and therefore [it] had no duty” to accommodate an employee who
suffered substantial back and neck problems making it difficult for her to
commute. (Sargent, supra, 841 F.Supp. at pp. 961, 958.) The court declined
to adopt such a “rigid” rule, emphasizing an employer’s “ ‘reasonable
accommodation’ ” obligation is to be interpreted “flexibly” and stating
employers must “actively re-structure their way of doing business in order to
accommodate the needs of their disabled employees.” (Id. at p. 961; accord
Humphrey, supra, 239 F.3d at p. 1137 [reversing summary judgment because
triable factual issues existed whether the plaintiff with obsessive compulsive
disorder could perform essential duties of job at home].)
3 California courts recognize ADA decisions are relevant in interpreting
the FEHA. (See Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235.)
26
Neither Livingston nor Sargent nor Humphrey support giving an
instruction that SCE was required to provide accommodations for difficulties
relating to Martinez commute. Rather, these authorities stand for the
proposition that there is no bright line rule and an employer’s obligations to
accommodate a disabled employee’s difficulties in getting to work depend on
the particular circumstances of the case. Consistent with this principle, the
court here instructed the jury that a reasonable accommodation is a
“reasonable change to the workplace that allows an employee with a
disability to perform the essential duties of the job,” and that reasonable
accommodations may include a wide range of alterations, including “changing
job responsibilities or work schedules.” Under these given instructions, both
counsel were free to argue about the reasonableness of SCE’s actions
pertaining to Martinez’s claimed commute difficulties.
Martinez argues the jury should have been “instructed that driving
anxiety and panic attacks affecting [an employee’s] work commute had to be
accommodated under the law.” (Italics added.) The proposed instruction was
argumentative and is not an accurate statement of the law.
D. Special Instruction No. 7: Preferential Reassignment
Proposed Special Instruction No. 7 read: “Disabled employees seeking
accommodation are entitled to preferential consideration for reassignment to
vacant positions for which they qualify without having to compete for the
position against other employees.”
The court did not err in refusing this instruction because the court gave
the essence of this instruction when it told the jury that “[r]eassigning an
employee to a vacant position” may be a reasonable accommodation.
Moreover, on the record before us, there is no showing the failure to give this
instruction was prejudicial. The undisputed evidence showed there were two
27
open positions at the Wildomar facility. One of the open positions was a
promotion, and an employer is not required to offer a promotion to a disabled
employee as an accommodation. (See Nealy, supra, 234 Cal.App.4th at
p. 377.) As to the other open job, the evidence showed that this job required
technical skills that Martinez did not have. As Martinez concedes, a disabled
employee is entitled to preference for an open job only if the employee was
qualified for that job.
Additionally, Martinez did not meet her prejudice burden because she
did not designate the closing arguments to be included in the appellate
record. There is no showing that Martinez’s counsel argued to the jury that
SCE was required to give preference to Martinez as to those two jobs, and
thus that a jury would have decided any differently on this issue. Moreover,
to the extent her counsel did make this argument, we presume both counsel
correctly explained to the jury the extent of an employer’s obligation to
provide preferential consideration to an employee, and thus we cannot
conclude the jury was misled in any way on this subject. Without a
transcript of the closing arguments, we cannot accurately assess the potential
impact of the requested instruction or the prejudice that might have been
caused by its absence.
E. Special Instruction No. 8: Employee’s Voluntary Actions
Proposed Special Instruction No. 8 read: “ ‘The cause or trigger of an
employee’s need for accommodation does not matter, employers must
accommodate disabilities even where the need for accommodation may have
resulted from the employee’s voluntary action.’ ” Martinez argues this
instruction was necessary because the jury erroneously believed she was not
entitled to recover on her claims because her voluntary move created the
need for an accommodation.
28
The court properly refused this instruction because it is not a proper
statement of the law as applied in this case. Moreover, there is no basis in
this record for finding the jury was misled or did not apply the correct law
pertaining to Martinez’s move to Murrieta.
Martinez testified during her direct examination that before her move
she was told by her SCE supervisors that she could not relocate to a different
office if she moved because she needed to remain with the physical files and
her work team. Several months later, Martinez moved her residence 45 miles
from her assigned work office and then asked to relocate based on a condition
she purportedly knew about for nine years before she moved (having panic
attacks while driving on the freeway). These facts were certainly relevant to
SCE’s review of Martinez’s relocation request, and to the jury’s assessment of
whether Martinez engaged in good faith discussions to find an appropriate
solution to her accommodations request.
In support of her proposed instruction, Martinez cites to a statement in
a Rutter Group treatise that the “cause of an individual’s impairment is
irrelevant” and that “the ADA may cover impairments that an individual’s
volitional acts cause or contribute to (e.g., cancer resulting from cigarette
smoking).” (Chin et al, Cal. Prac. Guide Employment Litigation (The Rutter
Group 2020) § 9:285.) This statement is made in the portion of the treatise
discussing the definition of a disability within the meaning of the ADA. In
this context, we agree that if a person has a physical or mental disability, it
generally does not matter whether the cause of that disability resulted from
voluntary behavior.
But the issue posed by Martinez’s requested instruction is different.
The question is not whether some voluntary conduct by Martinez caused her
panic attack disorder and thus created her mental health disability. The jury
29
found Martinez had a covered disability, and that finding has never been
challenged. Instead, it is whether her voluntary conduct (moving far away
from her place of employment), was the cause of her claimed need for an
accommodation. In analogous circumstances, the courts have recognized that
an employee’s voluntary conduct unrelated to a disability may be relevant to
the reasonableness of the employer’s response and willingness to
accommodate the claimed disability. (See Alamillo v. BNSF Ry. Co. (9th Cir.
2017) 869 F.3d 916, 922 [“ ‘ “reasonable accommodation” does not include
excusing a failure to control a controllable disability’ ”].) In this case,
Martinez’s decision to move to a home that required a long drive on the
freeway was relevant to (although not dispositive of) the jury’s consideration
of her disability-accommodation claim.
Martinez additionally argues the court erred in refusing to adopt her
proposed instruction because without the instruction the jury erroneously
believed the sole issue before it was whether her voluntary move was
reasonable. The record does not support this claim. The jury was fully
instructed on the elements of the disability accommodations claim under the
CACI instructions, and these instructions did not state or suggest such a
rule. Further, without a transcript of the closing arguments, we have no
basis to conclude the jury was misled by SCE’s counsel on this issue.
To support her contention that the jury was “improperly focused” solely
on her voluntary move, she points to two questions asked by the jurors during
her case-in-chief. The first question was why Martinez did not back out of
buying her new home before escrow closed once she realized the difficulty of
her new commute. The second question, put to Martinez’s supervisor, asked,
“When did . . . Martinez start looking at houses, if you know?”
30
As noted, pursuant to the court’s policy, the jurors submitted written
questions during the course of the trial and counsel had the option whether to
ask those questions of the witnesses. Martinez’s counsel elected to ask these
two questions of the witnesses. But a juror’s question during trial before the
jury is instructed, does not establish the juror accepted any arguments or
evidence before the deliberations began. The juror questions reflected
natural curiosity about a puzzling fact. To the extent Martinez believed
these questions showed the jury’s attention was improperly focused on the
move, her counsel had ample opportunity to discuss this issue with the jury
during closing arguments, and we presume her counsel did so.
DISPOSITION
Judgment affirmed. Martinez to bear SCE’s costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
GUERRERO, J.
31