[CERTIFIED FOR PARTIAL PUBLICATION
FRANSON, J. —
This disability discrimination case was brought by Sheriff's Deputy Dennis Wallace against the County of Stanislaus (County) under
The primary legal issue presented in this appeal is how to instruct a jury on the employer's intent to discriminate against a disabled employee and, more specifically, what role "animus" plays in defining that intent. The trial court believed proof of animus or ill will was required and modified the version of California Civil Jury Instruction (CACI) No. 2540 in effect at the time to include a requirement that Wallace prove County regarded or treated him "as having a disability in order to discriminate."
On appeal, Wallace challenges this instruction and the related question in the special verdict form. We conclude the instruction and special verdict form contained error. The proper standard regarding employer intent or motivation was decided by our Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 [152 Cal.Rptr.3d 392, 294 P.3d 49] (Harris). Under Harris, Wallace could prove the requisite discriminatory intent by showing his actual or perceived disability was a "`substantial motivating factor/reason'" for County's decision to place him on a leave of absence. (Id. at p. 232.)
We further conclude that the instructional error was prejudicial and remand Wallace's disability discrimination claim for a retrial. The retrial shall be limited to determining the amount of damages resulting from County's decision to place Wallace on an unpaid leave of absence from January 5, 2011, until January 30, 2013, when Wallace returned to patrol duties. A limited retrial is appropriate because the jury found that (1) County regarded or treated Wallace as if he were disabled, (2) Wallace was able to perform the essential job functions of a deputy sheriff with or without reasonable accommodation, and (3) County failed to prove Wallace's disability would increase
We therefore reverse the judgment and remand for a limited retrial.
Wallace was born in 1963. He worked for the E & J Gallo Winery from 1986 to 1994. In 1995, Wallace was employed by the City of Hughson Police Department.
In December 1997, Wallace was hired by County as a deputy sheriff. He started in patrol and then worked in various positions with the sheriff's department.
In October 2007, Wallace injured his left knee and filed a workers' compensation claim for that injury. He later reinjured his left knee during a river sweep. He was treated for left knee pain by Jonathan Cohen, M.D., an orthopedic surgeon who prescribed a knee brace. Wallace wore the knee brace at work until he had knee surgery on September 9, 2008. After the surgery performed by Dr. Cohen, Wallace took a Labor Code section 4850
From January 2009 until April 2009, Wallace took additional paid leave because of the knee injury. After this leave, Wallace began to work a light duty assignment in the property and evidence room. His restrictions at the time were limited climbing, limited walking on uneven ground, and limited running. These limitations were part of a May 2009 report prepared by Dr. Pedram Vaezi, a chiropractor and workers' compensation "qualified medical evaluator." This report was approved by Dr. Cohen.
On April 1, 2010, Wallace hand delivered a copy of Dr. Vaezi's supplemental report dated September 16, 2009, to the sheriff's department. Peggy Huntsinger, an assistant risk manager with County, testified that County did not receive the supplemental report earlier because the third party administrator that handled County's workers' compensation claims had not forwarded it to County. The restrictions for Wallace's left knee, as clarified in the supplemental report, indicated (1) no prolonged walking in excess of 30 to 45 minutes without a five-minute break, (2) no walking on uneven ground in excess of 30 minutes without a five-minute break, and (3) no prolonged standing in excess of 30 to 45 minutes without a five-minute break.
On April 9, 2010, Wallace received and initialed a "NOTICE OF OFFER OF MODIFIED OR ALTERNATIVE WORK" on a preprinted workers' compensation form. County offered Wallace an assignment as a bailiff for at least 12 months at his pre-injury rate of pay. County's cover letter referred to the position as a permanent modified duty assignment with the restrictions stated in Dr. Vaezi's supplemental report. It also stated the restrictions "are to be considered `Permanent' until your Agreed Medical Exam...."
During the period that Wallace worked as a bailiff, the sergeants who supervised Wallace had no issues with his performance. Sergeant Owens's performance evaluation of Wallace rated him as above average.
In October 2010, Wallace underwent the agreed medical exam with Richard Baker, M.D., an orthopedic surgeon, whose practice is limited to workers' compensation agreed medical exams. During the exam, Wallace told Dr. Baker about weakness and intermittent pain in his left knee, back pain, daily pain and occasional popping in his left ankle, pain in his shoulders, and daily, continuous mild pain in his neck. Dr. Baker's diagnosis of Wallace's left knee described medial and lateral meniscus tears, subluxation of the patella, synovitis, cartilaginous defect, femoral condyle, partial tear of the ACL and a tear of the MCL.
Based on his examination of Wallace, Dr. Baker issued a report dated October 25, 2010, that listed various "preclusions" including (1) no lifting more than 50 pounds, (2) no bilateral overhead work or repetitive right over shoulder work, (3) no forceful pushing, pulling, torquing with the right upper extremity, (4) no weight bearing more than 75 percent of the time, (5) no more than occasional climbing, squatting, kneeling, crouching, crawling or pivoting, and (6) no walking on uneven ground more than 75 percent of the
Based on Dr. Baker's report, a disability coordinator for County wrote a letter to Captain Tim David listing Wallace's work restrictions, to which Captain David responded, "No, we do not have modified or alternative work available." Undersheriff William Heyne was made aware of the restrictions in Dr. Baker's report and was involved in the decision to remove Wallace from his bailiff position on the grounds that Wallace could not perform the job with those restrictions. Heyne relied on Dr. Baker's restrictions, thought County was bound by those restrictions, and did not ask Wallace's supervisors if he was able to perform the job. Heyne explained the decision by stating, "The issue is, once [Dr. Baker] puts the restrictions down, we have to do something. Because if we don't do something, then we are liable because, if [Wallace] gets injured, if somebody else gets injured because [Wallace is] unable to perform his job, because everybody would say, wait a second, [with] his physical injuries [Wallace] can't wrestle with a suspect; yet you put him in an environment where he would have to."
On January 5, 2011, Wallace attended a meeting with County human resources consultant Brandi Welsh, Lieutenant Mick Hardenbrook and other representatives from the sheriff's department. Welsh testified the purpose of the meeting was to discuss medical work restrictions with Wallace, to explain the department's conclusions based on those work restrictions, and to start the discussion with Wallace about whether he was interested in looking at other County positions. As to the department's conclusions, Wallace was told that (1) he was to be removed from his position as bailiff that day and (2) the department had not identified any assignment as deputy sheriff that could accommodate his work restrictions. Wallace stated that he could perform the functions of a bailiff and also mentioned working as a detective or school resource officer. County did not alter its decision to place Wallace on leave. Welsh described County's treatment of Wallace following the January 5, 2011, meeting by stating, "He had been accommodated with a leave of absence." Following this statement, counsel asked Welsh: "You are saying an unpaid leave of absence is an accommodation to an employee who may have a disability?" Welsh answered, "Yes."
On January 10, 2011, Welsh and Wallace met again. Welsh stated the purpose of the meeting was to determine if Wallace wanted to look at other County positions after he had had an opportunity to consider the information
From January 10, 2011, to February 2012, Welsh had no communications with Wallace about his work status.
Welsh and Wallace communicated sporadically from February to July 2012. On July 3, 2012, shortly before the first trial, County offered to send Wallace to a fitness-for-duty examination to obtain updated medical information. County offered the examination because time had passed since Dr. Baker's October 2010 report and Wallace continued to maintain that he could perform the essential functions of a deputy sheriff. County also offered Wallace a job as a welfare fraud investigator, a nonsafety retirement position.
Dr. LaRoche performed the fitness-for-duty examination and issued a report dated January 25, 2013. Based on Dr. LaRoche's report, County placed Wallace back at work. On January 30, 2013, over three months before the second trial, Wallace returned to full duty as a patrol office.
On May 20, 2011, a few days before his accruals for sick leave and vacation were exhausted, Wallace filed a complaint against County and the sheriff's department alleging causes of action under the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.) for (1) disability discrimination, (2) failure to accommodate his disability, (3) failure to engage in the interactive process, and (4) failure to prevent discrimination.
First Jury Trial
In July 2012, the first jury trial began. On August 7, the trial court instructed the jury on the four causes of action and counsel presented their closing arguments. The jury concluded its deliberations on August 15, after resolving the first cause of action and deadlocking on the other three.
As to the disability discrimination claim, the jury's answers to the first three questions in the special verdict show it found (1) County treated Wallace as if he had a disability that limited his ability to engage in a major life activity; (2) Wallace was able to perform the essential job duties of a deputy sheriff with or without reasonable accommodation; and (3) County failed to prove Wallace would endanger himself or others in performing the essential job duties of a deputy sheriff. The jury answered "No" to the fourth question, which asked: "Did the County of Stanislaus regard or treat Dennis Wallace as having a physical disability in order to discriminate?" This finding resolved the disability discrimination cause of action in favor of County.
The jurors were not able to resolve the remaining three causes of action because they deadlocked on questions No. 7, No. 12 and No. 14 of the special verdict with votes of six to six, seven to five, and seven to five, respectively.
Motions for Summary Adjudication
After the first trial, each side filed a motion for summary adjudication. The trial court granted County's motion and eliminated the fourth cause of action (failure to prevent discrimination) based on the jury's resolution of the discrimination claim in favor of County. The trial court denied Wallace's motion for summary adjudication, which sought an order that the direct estoppel doctrine (i.e., issue preclusion) barred County from relitigating the
Second Jury Trial
In May 2013, a second jury trial was held on the remaining causes of action for (1) failure to accommodate and (2) failure to engage in the interactive process. Using a general verdict, the jury unanimously found in favor of County on both claims.
In July 2013, the trial court implemented the jury's verdict by filing a judgment in favor of County. Wallace filed a timely appeal from the judgment and the orders on the motions for summary adjudication. County did not file a protective cross-appeal with respect to the first jury's findings that were favorable to Wallace.
I. Overview of Feha's Prohibition of Discrimination
A. Section 12940
Section 12940 defines various unlawful employment practices, including certain types of employment discrimination. Wallace's disability discrimination cause of action is based on subdivision (a) of section 12940 and that statute is the primary source of the elements to Wallace's claim. Therefore, we quote a substantial portion of the text of that subdivision:
"It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
"(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
"(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an
Except for the terms "physical disability" and "mental disability," the foregoing statutory text defines both disability discrimination causes of action and discrimination claims based on race, religion, color, national origin, age and sex. In distilled form, section 12940 makes it unlawful for an employer "to discriminate against" a person "in terms, conditions, or privileges of employment" "because of" the listed factors. Therefore, from the perspective of the wording of subdivision (a) of section 12940, disability discrimination claims would appear to be similar to other types of discrimination claims. This appearance is misleading.
B. Disability Discrimination Claims
1. Direct Evidence of Motive — No Shifting Burdens
The distinction between cases involving direct evidence of the employer's motive for the adverse employment action and cases where there is only circumstantial evidence of the employer's discriminatory motive is critical to the outcome of this appeal. There is a vast body of case law that addresses proving discriminatory intent in cases where there was no direct evidence that the adverse employment action taken by the employer was motivated by race, religion, national origin, age or sex. In such cases, proof of discriminatory
2. Legislative Findings Specific to Disabilities
Another basis for distinguishing disability discrimination claims from discrimination alleged on other grounds is the specific legislative findings and declarations relating to disabilities. These finding are contained in section
In contrast to mistaken beliefs about an employee's disability, an employer's honest but mistaken belief in legitimate reasons for an adverse employment action can preclude liability in other discrimination contexts, such as race, age or sex. (Guz, supra, 24 Cal.4th at p. 358; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 170-171 [125 Cal.Rptr.3d 1].)
3. Definition of Physical Disability
This appeal involves issues relating to Wallace's physical condition and, therefore, we set forth the pertinent parts of the FEHA's definition of physical disability:
"(1) Having any physiological disease, disorder, condition ... that does both of the following: [¶] (A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal.... [¶] (B) Limits a major life activity. For purposes of this section:
"(i) `Limits' shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
"(ii) A physiological disease, disorder, condition ... limits a major life activity if it makes the achievement of the major life activity difficult.
"(iii) `Major life activities' shall be broadly construed and includes physical, mental, and social activities and working. [¶] ... [¶]
"(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult. (§ 12926, italics added.)
Paragraph (4) of this definition implements the Legislature's intent to protect individuals "erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity." (§ 12926.1, subd. (d); see Stats. 2000, ch. 1049, §§ 5, 6, pp. 7699, 7708.)
C. Other Terms Essential to the Disability Discrimination Claim
1. Meaning of Discriminate
Consequently, the many disparate treatment cases that use the phrase "legitimate nondiscriminatory reasons" with reference to an employment decision (e.g., Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 36 [172 Cal.Rptr.3d 371, 325 P.3d 916]) should not be read as implying that there are never legitimate discriminatory reasons for an adverse employment action in a case involving disability. The FEHA itself recognizes that employers have legitimate reasons for discriminating against disabled persons (i.e., treating them differently) — reasons that have no parallel when the discriminatory employment action is based on race, religion, national origin, age or sex. Those legitimate reasons include whether a disabled employee, even with reasonable accommodation, can perform essential job duties and do so safely. (§ 12940, subd. (a)(1); see Green, supra, 42 Cal.4th at p. 265; CACI No. 2544 [affirmative defense — health or safety risk].) In addition, an employer has a
2. Meaning of "Because Of"
The statutory ambiguity in the phrase "because of" was resolved by our Supreme Court about six months after the first jury trial. (Harris, supra, 56 Cal.4th 203 [meaning of "because of" for purposes of § 12940, subd. (a)].) Accordingly, the trial court and counsel did not have the benefit of the Harris decision or the subsequent modifications to CACI No. 2540 (Disability Discrimination — Disparate Treatment — Essential Factual Elements) and CACI No. 2507 ("Substantial Motivating Reason" Explained).
In Harris, the plaintiff was a bus driver who alleged she was fired because of her pregnancy. (Harris, supra, 56 Cal.4th at p. 211.) The city claimed she was fired for poor job performance. (Ibid.) The trial court used CACI No. 2500 to instruct the jury that the plaintiff had to prove her pregnancy was a "`motivating factor/reason for the discharge.'" (Harris, supra, at p. 213.) The Supreme Court addressed the meaning of the statutory phrase "because of" to answer the question of what the trier of fact is to do "when it finds that a mix of discriminatory and legitimate reasons motivated the employer's decision." (Id. at p. 215.) The court held that the jury should have been instructed to determine whether discrimination was "`a substantial motivating factor/reason.'" (Id. at p. 232, italics added.) Based on this statutory interpretation, the court concluded the jury instruction requiring the plaintiff to prove discrimination was merely "`a motivating factor/reason'" for her termination was erroneous. (Ibid.) The court heightened the standard for the link between the employer's consideration of the employee's disability and the adverse action taken by the employer to help ensure "that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision." (Ibid.) The court explained that the newly adopted substantial-motivating-factor test could be met and employers exposed to liability "even if other factors would have led the employer to make the same decision at the time." (Ibid.)
II. Instructional Error — Intent to Discriminate
A. The Jury Instruction on Discriminatory Intent
Wallace contends the first jury found against him on his disability discrimination claim due to instructional error involving the element of discriminatory intent. That element was addressed by an instruction stating Wallace was required to prove "that the County of Stanislaus regarded or treated Dennis Wallace as having a disability in order to discriminate and such wrongful discrimination was a motivating reason for the adverse employment action."
B. Trial Court's Modification of CACI
The trial court and counsel discussed the jury instructions and what the jury should be told about the employer's intent to discriminate. That discussion included references to the version of CACI No. 2540 then in effect, which stated in part: "6. [That [name of plaintiff]'s [history of [a]] [e.g., physical condition] was a motivating reason for [name of defendant]'s
That version of CACI No. 2540 did not use the term "animus" and, except for the language about "a motivating reason," did not mention the employer's intent to discriminate. The trial court told counsel that it read the case law as requiring employee plaintiffs to "prove that the actions taken by the employer were done with the intent to discriminate," which the court equated with "animus." The court proposed modifying CACI No. 2540 to "read that the County took the action in order to discriminate against the plaintiff." Counsel for plaintiff disagreed with the proposed language and counsel for County supported it by arguing that intent and animus has to be shown in any discrimination cause of action alleging disparate treatment. After counsel stated their arguments, the court decided to modify the jury instruction to include the language it had proposed.
C. Requisite Intent to Discriminate
1. Substantial-motivating-reason Test
Therefore, the jury instruction that Wallace was required to prove that County "regarded or treated [him] as having a disability in order to discriminate" was erroneous.
2. Role of Animus
County has argued emphatically that Wallace was required to show "animus" to establish County had the requisite intent to discriminate and the trial
The cases in this quote (1) predated Harris, (2) do not involve disability discrimination,
During oral argument, counsel for County referred to Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 [43 Cal.Rptr.3d 874] (Gelfo) as a disability discrimination case that required to plaintiff to prove "animus." In Gelfo, the court used the word "animus" twice: "We agree with Gelfo that, on this record, the first four elements of model instruction CACI No. 2540 are established. But no jury has yet had an opportunity to resolve the factual issues of animus, harm, and the substantiality of Lockheed's conduct as a factor in causing any harm Gelfo may have suffered. Those matters remain to be established by the final three elements of CACI No. 2540." (Gelfo, supra, 140 Cal.App.4th at pp. 53-54, fns. omitted & italics added.)
The court's use of the word "animus" should be interpreted in the context of the opinion as a whole. Earlier in the opinion, the court (1) referred to the January 2006 version of CACI No. 2540; (2) stated that the form instruction typically requires the plaintiff to prove the "[p]laintiff's physical condition was a motivating reason for the refusal to hire"; and (3) stated that the form jury instruction was modified to require the plaintiff to establish that the "[d]efendant's belief that plaintiff had a limiting condition was a motivating reason for the refusal to hire." (Gelfo, supra, 140 Cal.App.4th at pp. 50-51.) These references to "a motivating reason" and the court's clear rejection of the idea that a plaintiff claiming disability discrimination must prove the employer harbored ill will against the plaintiff or a class of individuals with the same disability suggest the court used "animus" as the equivalent of motive and not animosity or ill will. Such a usage of "animus" is consistent with the second definition stated in Black's Law Dictionary — namely, "intention." (Black's Law Dict., supra, at p. 103.) Therefore, under our interpretation of the Gelfo decision, its meaning would not change if either "motive" or "intention" were substituted for the court's two uses of "animus."
Therefore, we do not interpret Gelfo as supporting County's argument that an animus or intention exceeding a substantial motivating factor was an essential element of Wallace's disability discrimination cause of action. Furthermore, we conclude the Fifth Circuit also used the term "animus" to mean intention when it stated "we are concerned under the ADA with animus directed at the disability, and not necessarily with animus directed at the individual...." (Rodriguez v. ConAgra Grocery Products Co., supra, 436 F.3d at p. 480, italics added; see Taylor v. Pathmark Stores, Inc., supra, 177 F.3d at p. 183 [plaintiff alleging disability discrimination under the ADA "need not be the victim of negligence or malice"].)
D. Prejudice Resulting from Instructional Error
1. Basic Principles
An appellant who shows an instructional error occurred also must establish the error was prejudicial. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 613 [169 Cal.Rptr.3d 146]; Cal. Const., art. VI, § 13 [miscarriage of justice required for reversal].)
Prejudice or a miscarriage of justice exists when there is "a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule).) In cases of instructional error, a reasonable probability that "the jury would have returned a more favorable verdict" is sufficient to establish prejudice. (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1073 [119 Cal.Rptr.3d 878]; see Code Civ. Proc., § 475 [reversal is warranted where "a different result would have been probable if" the instructional error had not occurred].)
2. Prejudice Occurred in This Case
In the present case, the evidence easily demonstrates a reasonable probability that a properly instructed jury would have found Wallace's disability was a substantial motivating reason for County's decision to remove him from his job as a bailiff. Indeed, the evidence allows this court to find as a matter of law that Wallace established the substantial-motivating-reason element of his disability discrimination cause of action.
Initially, we note that this case involves an employer that claims the employee was removed from his job because of an inability to perform the job safely. County has not argued that its decision was unrelated to Wallace's physical condition or the impact of his physical condition on his ability to perform the duties of a bailiff. County's argument that it had legitimate reasons for placing Wallace on a leave of absence was described to the jury in
The jury clearly rejected County's argument about safety when it answered "No" to question No. 3 in the special verdict. That question asked if County had proven that Wallace would endanger himself or others to a greater extent than an individual without a physical disability in performing the essential job duties of a deputy sheriff with or without reasonable accommodation.
With County's position about its motive as background, we next address whether we can find as a matter of law that Wallace's actual or perceived disability was a substantial motivating reason for County's decision to place Wallace on a leave of absence on January 5, 2011. Prior to oral argument, we requested supplemental briefing from the parties on this issue. (See § 68081.) County's supplement brief argues that "the record demonstrates that the County was acting according to legitimate, non-discriminatory business interests and a desire to diligently follow the law." In County's view, placing Wallace on leave was "the most reasonable accommodation under the circumstances, motivated by a desire to follow the law as it relates to reasonably accommodating employees with disabilities, and to protect the health and safety of Wallace, his coworkers, and the community he served."
County's position suffers from a number of flaws. First, its argument about "legitimate, non-discriminatory business interests" mischaracterizes its actual position. In reality, County is arguing that it had legitimate reasons for treating Wallace differently (i.e., discriminating against him) by placing him on leave.
Second, County's version of the facts is contrary to the findings of the first jury. That jury found (1) Wallace was able to perform the essential job functions of a deputy sheriff with or without reasonable accommodation and (2) County failed to prove Wallace would endanger himself or others in performing those essential job functions. As a result of these findings, what County describes as legitimate business reasons actually were erroneous reasons based on County's mistaken belief about Wallace's ability to perform his job safely.
Third, assuming County had described its beliefs accurately and admitted that they were erroneous, it would have prevailed only if California law
Fourth, County's contention that placing Wallace on leave was the most reasonable accommodation cannot be reconciled with the legal principles applicable to the facts of this case. The jury found that Wallace could perform the essential job functions of a deputy sheriff, either with or without accommodation. Under California law, "[w]hen 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." (Cal. Code Regs., tit. 2, § 11068, subd. (c).) Pursuant to this regulation, County's decision to place Wallace on a leave of absence cannot be described as a lawful accommodation of a physical disability.
In summary, we conclude there is no dispute that County's motive for placing Wallace on a leave of absence was its mistaken perception that his physical condition created a safety issue. It logically follows that County's perception of Wallace's physical condition was a substantial motiving reason for County's decision to place Wallace on a leave of absence. Consequently, there is no need for a trier of fact to consider the substantial-motivating-reason element on remand — it is established as a matter of law.
E. Causal Link to Damages
The next element of Wallace's disability discrimination claim is whether County's decision to place Wallace on a leave of absence was a substantial factor in causing harm to Wallace. Wallace has sought to recover economic losses (i.e., lost earnings and benefits) and noneconomic losses (i.e., emotional distress and mental suffering).
1. Economic Losses
It is clear from the record before this court that County's decision to place Wallace on an unpaid leave of absence was a cause in fact of Wallace going
2. Noneconomic Losses
As to Wallace's claim that he suffered noneconomic losses in the form of mental suffering and emotional distress, there is a factual dispute about whether Wallace experienced any mental suffering and emotional distress and, if he did, whether County's decision to place Wallace on a leave of absence was a substantial factor in causing that harm. Furthermore, it is not clear from the record and briefing whether Wallace is claiming future noneconomic losses. Therefore, we cannot decide these issues regarding past and future economic losses as a matter of law and, accordingly, they must be resolved on remand.
F. Scope of Retrial
We note that the court in Bullock followed its statement about any doubts by observing: "The question whether a limited new trial is appropriate typically arises in cases involving excessive or inadequate compensatory damages. [Citation.] A new trial limited to determining the amount of compensatory damages ordinarily is proper unless the record indicates that the finding of liability resulted from a compromise verdict, in which case the new trial should encompass both liability and damages." (Bullock, supra, 159 Cal.App.4th at p. 697.)
Guided by the foregoing principles and our ability to make findings as a matter of law on the elements of substantial-motivating-reason and the causal link between County's decision to place Wallace on a leave of absence and economic losses suffered by Wallace, we conclude that the scope of the retrial can be limited to issues relating to damages. Any confusion that might result from a potential retrial of Wallace's other three causes of action can be avoided because the retrial need not include those claims. The parties have agreed that, if the retrial of the first cause of action is limited to issues involving damages, there is no need to retry the other three causes of action. In particular, Wallace's supplemental letter brief explicitly acknowledged that the damages that he might recover under those three causes of action would be redundant to those recovered under his disability discrimination claim. Therefore, we conclude that prejudicial confusion and uncertainty will be avoided by a retrial of the first cause of action limited to determining (1) the amount of Wallace's economic damages and (2) the existence and amount of noneconomic damages caused by County's decision to place him on a leave of absence on January 5, 2011, and not returning him to duty until January 30, 2013.
G. Other Issues
The judgment is reversed and the matter is remanded to the trial court for further proceedings for damages on Wallace's first cause of action for disability discrimination, consistent with the scope of retrial described in part II.F. of this opinion and the findings this court has made as a matter of law.
Wallace shall recover his costs on appeal.
Kane, Acting P. J., and Poochigian, J., concurred.
POOCHIGIAN, J., Concurring. —
I concur in the court's opinion and judgment, but write separately to underscore an important limitation on the scope of Government Code
The court's opinion expresses the following rule of law: "We conclude that where, as here, an employee is found to be able to safely perform the essential duties of the job, a plaintiff alleging disability discrimination can establish the requisite employer intent to discriminate by proving (1) the employer knew that plaintiff had a physical condition that limited a major life activity, or perceived him to have such a condition, and (2) the plaintiff's actual or perceived physical condition was a substantial motivating reason for the defendant's decision to subject the plaintiff to an adverse employment action." (Maj. opn., ante, at p. 129.)
This holding indicates that negating section 12940, subdivision (a)(1) is a sufficient condition to establish disability discrimination under the California Fair Employment and Housing Act (FEHA) (§ 12900 et seq.), but I write separately to clarify that it is also a necessary condition. Section 12940, subdivision (a)(1)'s "specific language unambiguously provid[es] that an adverse employment action on the basis of disability is not prohibited if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation." (Green v. State of California (2007) 42 Cal.4th 254, 264 [64 Cal.Rptr.3d 390, 165 P.3d 118], original italics.) Consequently, in order to establish that an employer has engaged in disability discrimination under FEHA, an employee must also show that the "disability would not prevent the employee from performing essential duties of the job, at least not with reasonable accommodation." (Green, supra, at p. 262.) Because the employee bears the burden of proof on this issue (id. at pp. 263-264), there is no reason to exclude it as a coequal element required to establish disability discrimination.
Consequently, the complete standard in the disability context is that an employer discriminates in violation of section 12940, when (1) the employer knew or perceived plaintiff as having a physical condition that limited a major life activity, (2) the plaintiff's actual or perceived physical condition was a substantial motivating reason for the employer's action, and (3) the substantial motivating reason was something other than the fact that the physical condition actually rendered the plaintiff (a) unable to perform essential job duties whatsoever even with reasonable accommodation or (b) unable to perform essential job duties safely with reasonable accommodation.
Identifying these differences between disability discrimination and other forms of discrimination is important. But we should also spell out exactly how these differences affect the definition of discrimination in the disability context.
This statutory reality could discourage employers from reassigning employees who they honestly and reasonably believe, based on medical opinion, pose a danger to themselves or others. If such an employer did reassign the employee based on an honest and reasonable belief, the employer could nonetheless be subject to liability if a jury later concludes that belief was mistaken.