Garcia v. Cal. Dept. of Corrections & Rehabilitation CA4/1 (2015) · DecisionDepot
Garcia v. Cal. Dept. of Corrections & Rehabilitation CA4/1
California Court of Appeal Jan 16, 2015 No. D063346Unpublished
Filed 1/16/15 Garcia v. Cal. Dept. of Corrections & Rehabilitation 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSEPH GARCIA, D063346
Plaintiff and Appellant,
v. (Super. Ct. No. ECU05684)
CALIFORNIA DEPARTMENT OF CORRECTIONS & REHABILITATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey Bruce
Jones, Judge. Affirmed.
Law Offices of David A. Miller and David A. Miller for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alicia M. B. Fowler, Assistant Attorney
General, Chris A. Knudsen and Michael J. Early, Deputy Attorneys General, for Defendant
and Respondent.
Following a hearing in a bifurcated proceeding, a jury reached a verdict that
climbing ladders and scaffolds was an essential function of Joseph Garcia's job as a Painter
II at the California State Prison in Centinela (Centinela) located in Imperial County,
California. The trial court subsequently granted a directed verdict as to Garcia's claim for
wrongful termination in violation of public policy and various causes of action under the
Uribe, Jr., testified that one of the essential duties of the Painter II job is to work above
ground.
The court admitted into evidence documents including a CDCR Painter II job
description listing among the essential duties and responsibilities of the job that the painter
"[m]ay be required to use an aerial lift device, work on scaffolding, extension ladders and
second story roofs." That same document notes that some paint jobs involve work in
precarious places like roofs, which can be 10 to 30 feet high, and that the Painter II might
need to utilize scaffolding. The job description also states: "One or more inmate workers
may be utilized in the performance of these duties; however, the employee must be able to
meet the physical demands as described because inmate workers are not always available.
Due to security requirements, inmates are not permitted to work on the building rooftops,
in any of the equipment rooms located within the maximum-security compound or in the
housing control units. Also, inmate workers are not available during periods of lockdown
or times of institutional emergencies."
Other documents admitted into evidence included a Centinela "duty statement"
outlining a Painter II's duties and a statement from Jones, explaining to a Centinela return-
to-work coordinator, Felecia Barker, how Garcia performed his painting jobs without using
a ladder or being on a scaffold, and how he was able to paint ceilings or roofs.
7
The court modified CACI No. 2543 and instructed the jury generally regarding
essential job duties.2 The jury's special verdict form asked: "Is working on ladders or
scaffolds at heights above four feet an essential job duty of the position of Painter II?" The
jury responded, "Yes."
In light of the jury's finding, CDCR moved for nonsuit on all causes of action. The
court asked Garcia for an offer of proof regarding what kind of accommodations Garcia
needed to make him a qualified individual. Garcia's counsel replied, "Well, the evidence is
that [Garcia] had inmate crews and he had coworkers who painted with him that could
perform that part of the work for him to accomplish the task of the job, which was to put
paint on the walls. [¶] So when Mr. Garcia can be accommodated in such a manner, either
with tools or by restructuring or modifying his job in that manner, and they did it for 16
years, that that's proof in itself that the accommodation they granted him was effective,
allowed him to effectively complete all of his work assignments and perform every aspect."
The court responded that in light of the jury's finding, Garcia was not a qualified individual
2 The court instructed the jury that: "Joseph Garcia contends that the essential job duties of the position of Painter II did not include working above 4 feet off the ground on ladders or scaffolds. To succeed, Joseph Garcia must prove by a preponderance of the evidence that working above 4 feet off the ground on ladders and scaffolds was not an essential job duty of the position of Painter II. [¶] In deciding if a job is essential, you may consider, among other factors, the following: [¶] a. Whether the reason the job exists is to perform that duty; [¶] b. The number of employees available who can perform that duty; and [¶] c. Whether the job duty is highly specialized." The court also instructed: "Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] The employer's judgment as to which functions are essential. [¶] 2. Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] 3. The amount of time spent on the job performing the function. [¶] 4. The consequences of not requiring the plaintiff to perform the function." 8
under FEHA. The court tentatively granted the nonsuit motion, but requested further
briefing.
Garcia submitted with briefing stating he had already made his arguments orally at
the hearing, and would submit on the court's tentative ruling to grant the nonsuit motion.
Following a hearing, the court granted nonsuit, but later modified the judgment to grant a
directed verdict as to all remaining causes of action except the eighth, retaliation, as to
which it declared a mistrial. The court noted that the ninth cause of action for unpaid
wages had been disposed of in the in limine motion for judgment on the pleadings.
CDCR moved for summary judgment on the retaliation cause of action, arguing
Garcia could not establish a prima facie case of retaliation: "First, he cannot show that he
engaged in a protected activity, as he filed no complaint or participated in any proceeding
under FEHA. Instead, he made a request that he be excused from performing an essential
function of his job. This is not protected activity. Second, [Garcia] cannot show a causal
link between his request to be excused from climbing ladders, etc. in 2007, and his medical
transfer in December 2009." Furthermore, CDCR claimed it had a legitimate
nonretaliatory reason for medically demoting Garcia in 2009; namely, Dr. Bruff's
examination confirmed Garcia suffered from vertigo, which prevented him from
performing the essential functions of his Painter II job. CDCR argued that in assigning
Garcia to Solano prison as a lab assistant, it had elected "the highest paying and closest
position available." Finally, CDCR argued it did not have retaliatory intent in terminating
Garcia.
9
CDCR supported its summary judgment motion with a declaration from Tapia
stating that Dr. Bruff had determined Garcia could not perform the essential functions of
his job because of his inability to work at height due to "a balance problem that poses an
immediate and real expectation of [harm] occurring to himself and coworkers if [Garcia]
was placed at height." Tapia elaborated: "The essential functions of a Painter II position
include the ability to mix paints and match colors, scaffolding and rigging, do paper
hanging, estimate material needed, keep simple records and make reports, follow oral and
written instructions, read and write English [at] a level appropriate for the classification
and erect and paint from ladders." Tapia concluded CDCR was unable to find a suitable
replacement job for Garcia: "Between January 2008 and June 2009 I worked with other
CDCR personnel to locate a position for [Garcia] given his inability to perform the
essential functions of his Painter II position. However, [Garcia] insisted on a single
accommodation—that the status quo be maintained and that he be allowed to work in a
permanent light duty assignment. Another factor which complicated my efforts to locate
[him] a position he could physically perform was the fact that [he] did not meet the
minimum education requirements of most positions because he does not have a high school
diploma or a GED. On July 15, 2009, CDCR informed [Garcia] that since he refused a
voluntary demotion and could not perform the essential functions of the Painter II position,
he would be medically demoted."
Attached to Tapia's declaration were a copy of Dr. Bruff's report of his medical
evaluation of Garcia, Centinela's job description for the Painter II position and
10
correspondence between Tapia and Garcia regarding the interactive process to
accommodate Garcia's illness.
Warden Uribe also submitted a declaration in support of CDCR's motion for
summary judgment: "I met with [Garcia] several occasions in 2009 to discuss his options
because [he] could not perform the essential functions of the Painter II position because he
could not work at heights. During these meetings I explained that the CDCR would not
permanently waive the essential functions of his job and that if he could not climb ladders
or otherwise work at heights, he could not be a Painter II. Moreover, given the danger his
condition presented to his safety and the safety of [his] co-workers, no accommodation was
possible to allow [him] to perform the essential functions of the Painter II position."
In opposing summary judgment, Garcia argued his complaint raised "a viable claim
of retaliation which is well supported by controverting evidence [sic]—thus raising triable
issues of material fact on the retaliation claim." He further argued that he had insisted that
CDCR continue "the permanent reasonable accommodation status granted by the [w]arden
and permitted for 16 years." Garcia claimed his termination was motivated by his assertion
of a legal right to reasonable accommodation in light of his disability. He argued the
restriction that he not use a ladder or scaffold "was not really an 'essential' job function and
compromised only 1.4 [percent] of his total job duties"; therefore CDCR could still
reasonably accommodate him.
The court granted the summary judgment motion, finding no triable issue of
material fact existed and Garcia could not establish a prima facie case of retaliation
because he did not engage in a protected activity under FEHA. It ruled: "[Garcia's]
11
request to be excused from the essential function of climbing ladders or working more than
four feet above the ground, predated the medical demotion by many years and there was no
evidence of a nexus between [Garcia's] request to be excused from the essential function of
climbing ladders and the medical demotion which occurred in 2009, following the 2007
Fitness for Duty exam." The court continued: "[Garcia] failed to produce any evidence of
a retaliatory animus by any decision maker involved with [his] medical demotion in 2009.
Similarly [Garcia] produced no evidence that there were other positions to which he could
have been transferred, which were closer in proximity to El Centro, California."
Garcia moved for judgment notwithstanding the verdict, new trial, and to vacate and
enter a different judgment, arguing: "The court improperly, on its own sua sponte motion,
bifurcated the trial, restricting [Garcia's] evidence to only part of one legal phase. The
court abused its discretion by writing its jury instruction while at the same time telling
[Garcia] there would be opportunity for further trial testimony and evidence—which was
fact not true [sic]. The court improperly aided the defense by suggesting the defense make
motions for nonsuit when in fact the plaintiff had not fully presented its evidence, then the
court granted the nonsuit motion and repeatedly changed the motion title. [Garcia] was
materially and prejudicially affected and never allowed a fair trial. [¶] [Garcia's] limited
evidence established that the ladder 'requirement' was only 1.4 [percent] of the total job and
that for 16 years [Garcia] successfully performed his job assignments without any impact
on the other painters. Therefore the ladder 'requirement' was inconsequential to
performance as a Painter II and the verdict claiming it was 'essential' fails as a matter of
law and fact. [¶] [Garcia] should have been allowed to present all evidence to show [he]
12
could perform his job with reasonable accommodation, which accommodation [he]
demonstrated was permanently granted to him in accordance with California law."
The court denied Garcia's motion, concluding the jury's verdict was "clearly
supported by the evidence." The court told Garcia's counsel: "[Y]ou have focused on the
16-year period that Mr. Garcia did the job with the waiver, the accommodation, and you
have focused on that as evidence that the essential functions of the job do not require
climbing the ladders or scaffolding. I see that differently." The court elaborated:
"Although it is not pled and there was no attempt to prove it, it might give rise to an
estoppel, but that is not here. That was not pled. There was no mention of estoppel. In
fact, my saying that right now is probably [the] first time it has been mentioned in the
case."
DISCUSSION
I.
To the extent Garcia contends the court erred by bifurcating the trial, we reject the
contention.
As noted, the trial court issued an order to show cause why it should not proceed
with bifurcation under Code of Civil Procedure section 1048, subdivision (b), which states:
"The court, in furtherance of convenience or to avoid prejudice, or when separate trials will
be conducive to expedition and economy, may order a separate trial of any cause of
action . . . or of any separate issue or of any number of causes of action or issues,
preserving the right of trial by jury required by the Constitution or a statute of this state or
of the United States." In general, "[w]hether there shall be a severance and separate trials
13
on issues in a single action is a matter within the discretion of the trial court." (Shade
"If the employee cannot be accommodated in his or her existing position and the
requested accommodation is reassignment, an employer must make affirmative efforts to
determine whether a position is available. [Citation.] A reassignment, however, is not
required if 'there is no vacant position for which the employee is qualified.' [Citations.]
'The responsibility to reassign a disabled employee who cannot otherwise be
accommodated does "not require creating a new job, moving another employee, promoting
the disabled employee or violating another employee's rights." ' [Citations.] 'What is
required is the "duty to reassign a disabled employee if an already funded, vacant position
at the same level exists." ' " (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223
(Raine); see § 12926, subd. (p).)
18
Tapia provided uncontradicted evidence regarding her efforts to reasonably
accommodate Garcia. She offered him several options, but he rejected them all, insisting
on returning to his painter job—with accommodation—despite Dr. Bruff's explanation of
the essential aspects of the job and safety problems that can result from Garcia's continued
working in that position. Further, Tapia explained she was constrained in accommodating
Garcia because of his not having completed high school. In light of that fact, the lab
assistant position, which did not require a high school diploma, was a reasonable
accommodation. On this record, Garcia failed to prove his claim CDCR violated his rights
to reasonable accommodation under FEHA.
IV.
Garcia contends CDCR failed to engage in an "interactive process" as required
under FEHA: "CDCR accommodated his work restriction for 16 years. It was granted as
'[p]ermanent.' CDCR refused to discuss retaining his Painter II position and demanded he
accept a [p]hlebotomist position at half pay and 596 miles away from home. This is a
blatant refusal to act in good faith by CDCR."
Section 12940, subdivision (n) makes it unlawful "[f]or an employer or other entity
covered by this part to fail to engage in a timely, good faith, interactive process with the
employee or applicant to determine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an employee or applicant with a
known physical or mental disability or known medical condition."
19
" 'The "interactive process" required by the FEHA is an informal process with the
employee or the employee's representative, to attempt to identify a reasonable
accommodation that will enable the employee to perform the job effectively. [Citation.]
Ritualized discussions are not necessarily required.' " (Scotch v. Art Institute of California-
Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013 (Scotch).)
In Raine, the defendant employer reassigned an employee police officer to a
temporary light-duty position to accommodate the employee's injury while it healed.
(Raine, supra, 135 Cal.App.4th at p. 1218.) The employee remained in that position for six
years until his physician advised the employer the disability was permanent. (Ibid.) The
employer told the employee it had no available permanent positions as a sworn police
officer for someone with the employee's qualifications, and offered him a desk position as
a civilian police technician. (Id. at p. 1219.) The employee declined the offer, took
disability retirement, and sued the employer under the FEHA, contending the employer
failed to reasonably accommodate his limitations by making his temporary position
permanent. (Raine, supra, at p. 1219.) The Court of Appeal, affirming summary judgment
in the employer's favor, held the employer had no obligation under the FEHA to make the
temporary light-duty position available indefinitely once the employer learned the
disability was permanent. (Raine, supra, at pp. 1217-1218.)
In Furtado v. State Personnel Board (2013) 212 Cal.App.4th 729, this court
addressed the case of a correctional officer at Centinela, Furtado, whose injuries to his arm
caused him to lose grip strength and loss of range of motion, making it difficult for him to
use a baton. (Id. at pp. 734, 735.) Furtado alleged discrimination because he was denied
20
accommodation for his disability and was medically demoted. (Id. at p.741.) We
concluded, "Furtado requested that the [CDCR] 'accommodate' his disability by either
waiving the requirement that he certify with the side handle baton, or assigning him to an
'administrative' correctional lieutenant position. Furtado was not entitled to either of these
'accommodations.' Waiving the baton certification requirement would mean that Furtado
would not have to demonstrate that he is a 'qualified individual' within the meaning of
FEHA. Instead, it would allow Furtado to continue as a correctional lieutenant while being
unable to perform all of the essential functions of the position." (Id. at p. 753.)
Guided by these authorities, we reject Garcia's contention the CDCR failed to
engage in the interactive process. Substantial evidence showed Tapia sent him information
regarding his options for reasonable accommodation. Tapia also outlined the difficulty she
had finding alternative placements for him. As in Raine, supra, 135 Cal.App.4th 1215, the
fact the CDCR had accommodated Garcia for a considerable length of time did not require
CDCR to make that accommodation permanent. As in Furtado, supra, 212 Cal.App.4th
729, Garcia was not entitled to an accommodation that would dispense with the
requirement that he demonstrate he is a "qualified individual."
"To prevail on a claim under section 129540, subdivision (n) for failure to engage in
the interactive process, an employee must identify a reasonable accommodation that would
have been available at the time the interactive process should have occurred." (Scotch,
supra, 173 Cal.App.4th at p. 1018.) Here, Garcia has not identified any other position that
he could have held that would have satisfied the requirement of reasonable
accommodation.
21
V.
Garcia contends the court failed to "properly allow evidence, properly instruct the
jury and [used a] defective special verdict form." His entire argument on this point states:
"This jury was never allowed to hear relevant evidence, receive clear full instructions, nor
given a proper special jury verdict form. The duty set forth in California Rules of Court,
Rule 2.1050 (a) and (b) was not followed by the court. [Garcia] was severely prejudiced
and his case dismissed without a fair trial. [¶] The trial judge conducted his own trial in a
way only he conceived. He wrote his own motion, ruled on his motion, wrote his own jury
instruction[s] and wrote his own special verdict form. Then he suggested [the] CDCR
make motions it did not contemplate and he moved a key motion date to specially
accommodate CDCR so the judge could dismiss the case. How can this be considered
impartial and fair in our judicial system? Every objection and correction of the law by
Garcia's counsel was ignored. The Court of Appeal is urged to restore respect for the
system so disabled employees will believe they have protectable legal rights to work in the
community."
Garcia in his brief has not developed his arguments with reference to applicable law;
therefore, we deem this contention forfeited. An appellant must affirmatively demonstrate
error through reasoned argument, citation to the appellate record, and discussion of legal
authority. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116
(Guthrey); Cal. Rules of Court, rule 8.204(a)(1)(C).) As a general rule, "[a]n appellant
must provide an argument and legal authority to support his contentions. This burden
requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life
22
of their own: If they are not raised or supported by argument or citation to authority, [they
are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to
undermine the judgment and defeat the presumption of correctness. When an appellant
fails to raise a point, or asserts it but fails to support it with reasoned argument and
citations to authority, we treat the point as waived.'' (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852.)
Rule 8.204(a)(1)(C) of the California Rules of Court places the burden on appellants
to "[s]upport any reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears.'' Thus, '' '[t]he reviewing court is not
required to make an independent, unassisted study of the record in search of error or
grounds to support the judgment.' [Citations.] It is the duty of [appellant] to refer the
reviewing court to the portion of the record which supports appellant's contentions on
appeal. [Citation.] If no citation 'is furnished on a particular point, the court may treat it as
waived.' '' (Guthrey, supra, 63 Cal.App.4th, at p. 1115.)
We need not examine undeveloped claims; our role is to evaluate legal argument
with citation of authorities on the points made. (Maral v. City of Live Oak (2013) 221
Cal.App.4th 975, 984-985; People v. Stanley (1995) 10 Cal.4th 764, 793.) Garcia's
briefing gives us no basis to conduct this analysis. None of his bare assertions
affirmatively demonstrates the court erred.
23
In any event, to the extent Garcia claims the court erred by instructing the jury with
a modified version of CACI No. 2543 regarding the criteria to ascertain the essential job
duties of a Painter II, we conclude any claim of error is waived because Garcia acquiesced
in the court's instruction.
At trial, this exchange took place regarding the instruction:
"GARCIA'S COUNSEL: I have a lot of jury instructions here and I did write on my own, which is my habit. I usually write several variations of the jury instructions too.
"COURT: Well, this again – you are correct, it's a modified form of [CACI No.] 2543, [subdivision] (a). My convention is I just start adding letters as I tweak the jury instructions. It works well that way. So if you see a letter on there, you know that's a modified instruction. [¶] And, for instance, [CACI No.] 2543, [subdivision] (b) is an instruction that I wrote, although it comes directly out of statute. Doesn't include some stuff in the statute that's irrelevant, like – oh, I can't remember, there's only one person in the organization that could do the job and that kind of thing. "GARCIA'S COUNSEL: Right, like the collective bargaining agreement. I have all the statutes here, so –
"COURT: Yeah.
"GARCIA'S COUNSEL: Okay, I'm fine with that."
Later, during closing arguments, Garcia's counsel elected to inform the jury:
"You're going to get a chance to look at the jury instructions, which will tell you a summary of the law. The judge and the attorneys have all gone through them and we've agreed that these are the correct ones to read to you, for you to follow."
In Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685, we explained
that " 'an appellant may waive his right to attack error by expressly or impliedly agreeing at
trial to the ruling or procedure objected to on appeal.' " Further, principles of waiver
"apply with particular force in the area of jury instructions." (Id. at p. 1686.) Here, in light
24
of the fact Garcia's counsel abandoned any objections he had to the court's instruction and
expressly agreed with the court's modified instruction, to the point of making an
unprompted remark to the jury that all the jury instructions were acceptable to the parties,
his claim of error is not preserved on appeal.
VII.
Garcia contends the trial court improperly granted summary judgment of his
retaliation claim. He specifically contends: "By CDCR's failure—and refusal—and
shifting excuses to explain the termination decision, Garcia has shown the retaliation was
more likely a motivating reason, thereby proving his case of retaliation. [¶] Here, Garcia
sets forth a pattern of unlawful disability discrimination. This shows a consistent
retaliatory intent and causal connection between the protected activity and termination."
"FEHA makes it 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.' " (Scotch, supra, 173 Cal.App.4th at p. 1003, quoting
§ 12940, subd. (h).) To establish a prima facie case of retaliation, the employee must show
" '(1) he or she engaged in a "protected activity," (2) the employer subjected the employee
to an adverse employment action, and (3) a causal link existed between the protected
activity and the employer's action.' " (Scotch, at p. 1020, quoting Yanowitz v. L'Oreal USA,
Inc. (2005) 36 Cal.4th 1028, 1042.) A causal link may be established by showing that the
adverse employment action occurred shortly after the employee filed a charge of
discriminatory conduct. (See, e.g., Scotch, at pp. 998, 1001, 1020 [finding sufficient
25
evidence of causation where employee suffering from AIDS suffered adverse employment
action (change in status from full to part time) weeks after stating in a letter and in
meetings with supervisors he believed he was being treated differently because of his
condition]; Strother v. S. Cal. Permanente Medical Group (9th Cir.1996) 79 F.3d 859, 869-
870 [employee suffered adverse employment action one day after filing discrimination
charge].)
While we must liberally construe Garcia's showing and resolve any doubts about the
propriety of a summary judgment in his favor, his evidence remains subject to careful
scrutiny. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1518-1519.) We
can find a triable issue of material fact "if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the motion
in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
We conclude Garcia has pointed to no evidence to support his contention that
CDCR failed or refused to explain its termination decision, or that it provided "shifting
excuses" about it. CDCR met its burden by showing, through correspondence between
Tapia and Garcia, that the reason for the termination was Dr. Bruff's conclusion Garcia
could not perform the essential functions of his job. The burden thus shifted to Garcia to
show this reason was pretextual. But Garcia failed to meet his burden. He failed to submit
evidence the decision to demote him had a retaliatory motive. Accordingly, this claim
fails.
26
Garcia also claims, with no citation to the record or legal authority: "This [summary
judgment motion] should never have been entertained by the trial court. It was too late, the
trial had started, the statutory deadlines were over, and the evidence of retaliation at least
created triable issues. Garcia deserved the chance to present his evidence and get a fair
trial." This contention is forfeited because Garcia does not meet the standard for
presenting an appellate argument supported by applicable law. (Guthrey, supra, 63
Cal.App.4th at pp. 1115-1116; Cal. Rules of Court, rule 8.204(a)(1)(C).)
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
McINTYRE, J.
27
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment against the plaintiff, holding that the jury's finding that climbing ladders and scaffolds was an essential function of the plaintiff's job precluded his claims under the Fair Employment and Housing Act (FEHA) because he was not a qualified individual.
Issues
Did the trial court err in bifurcating the trial?
Did the trial court err in granting a directed verdict/nonsuit after the jury found the plaintiff could not perform essential job functions?
Did the trial court err in granting summary adjudication on the retaliation claim?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The jury's special verdict form asked: "Is working on ladders or scaffolds at heights above four feet an essential job duty of the position of Painter II?" The jury responded, "Yes."”
“Being a "qualified individual," means an employee who can perform the essential functions of the job with or without reasonable accommodation.”
“Consequently, Garcia was required to show he could perform that job with or without accommodation, but he failed to do so.”