DFEH v. County of Riverside

Filed 3/22/06 DFEH v. County of Riverside CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge. Affirmed.

Kinkle, Rodiger & Spriggs, Bruce E. Disenhouse; Arias, Lockwood & Gray, and Christopher D. Lockwood for Defendant, Appellant, and Respondent.

Bill Lockyer, Attorney General, Thomas J. Greene, Chief Assistant Attorney General, Louis Verdugo, Jr., Senior Assistant Attorney General, Angela Sierra and Antonette B. Cordero, Deputy Attorneys General, for Plaintiff and Respondent.

Michael P. Stone, Lawyers, Michael P. Stone and Marc Berger for Intervener, Respondent, and Appellant.

The Department of Fair Employment and Housing (DFEH) sued the County of Riverside (County) on behalf of William Clark, alleging employment discrimination on the basis of a mental disability. The jury awarded $460,000. The County appeals from the judgment and the denial of its postjudgment motions. Clark appeals from the denial of his application for attorney and expert fees. We affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

1. Clark's injury

Clark joined the Riverside County Sheriff's Department in January 1980. Eventually, he was promoted to detective and later joined the Special Investigations Bureau, a specialized unit composed of investigators with advanced training.

In June 1994, Clark was part of a team serving a search warrant at a house. Clark was in a bedroom searching under the bed when he suddenly was hit on the back of the head with two heavy wooden closet doors. Apparently, his partner had thrown the doors open and knocked them off the track.

The next thing Clark remembered was being escorted from the house. He was dizzy and not feeling well. As time progressed, he felt worse. He was examined by doctors, who were concerned he had a concussion. He was off work for a week or two and then returned.

Several months later, Clark started having problems with his breathing, sinuses, and ears. As time progressed, he started having problems at work. He made some bad decisions, became difficult to get along with, lost patience more frequently, and would forget things. He began to have trouble getting his work done and became more aggressive and hostile in dealing with citizens in the field.

On the recommendation of a doctor, Clark was taken off work for his breathing problems around September of 1996. While off work, Clark received counseling from a psychologist, Dr. Pedersen, beginning in October 1996. He also continued under the care of his primary care physician, Dr. Davis. He saw at least six County doctors and another six of his own doctors.

Periodically, Clark obtained notes from Dr. Davis and Dr. Pederson, stating he was disabled and could not return to work.

2. Medical testimony

a. DFEH experts

Dr. Pedersen diagnosed Clark with major depression. Later, he also diagnosed posttraumatic stress disorder relating to the June 1994 incident. He believed Clark's condition was permanent, and he would not be able to return to active duty as a sheriff's deputy.

Dr. Davis diagnosed posttraumatic stress disorder, concussion syndrome, and neurological problems. He did not think it was safe for Clark to return to work carrying a gun or dealing with stressful situations.

Dr. Purisch, a neuropsychologist, diagnosed Clark with postconcussion syndrome and personality change due to traumatic brain injury. He believed Clark was precluded from performing jobs with unusual stress or pressure. He believed Clark would have permanent problems, and there would be restrictions on his work performance.

b. County experts

Dr. Marusak, a psychiatrist, evaluated Clark in April 1997 at the request of the County in connection with Clark's claim of industrial injury. He diagnosed Clark with hypochondriacal neurosis, which is a mental disorder. This condition would not preclude Clark from returning to work as a sheriff's investigator.

Dr. Glatstein, a neurologist, performed a workers' compensation evaluation of Clark in April 1997, as a qualified medical evaluator. He diagnosed Clark as neurologically normal. He believed that, from a neurological perspective, Clark was able to return to his duties as a sheriff's investigator.

Dr. Strickland, a clinical psychologist acting as an agreed medical evaluator in Clark's workers' compensation proceeding, evaluated Clark in 1998. He found Clark was depressed and anxious and had features of somatization,^[1] paranoia, and passive-aggressiveness. These conditions constituted a mental disorder. He believed that with counseling and a change in the deputy district attorney assigned to his cases, Clark could return to his job.

In 2000, Clark was examined by Dr. William Soltz, a clinical psychologist who served as an agreed medical examiner. Dr. Soltz diagnosed depression, anxiety, and apparent somatization. These conditions constituted a mental disorder. However, Dr. Soltz believed Clark was able to return to work as a sheriff's investigator.

3. Clark's separation from work

In a letter dated September 22, 1998, the sheriff's department directed Clark to report for work on October 8, 1998. However, Clark obtained a letter from Dr. Davis further explaining the doctor's concern, and he was placed off work again shortly after he reported. That was the last time Clark reported for work.

In a letter dated October 22, 1998, the sheriff's department notified Clark that, due to the information and recommendation received from his doctor, his peace officer powers were immediately suspended, including his authorization to possess department weapons, identification, and badge. In addition, the letter stated that since Clark's current status rendered him unable to perform the duties of a deputy sheriff, he was presumed incapable of other employment and therefore was not authorized to accept any employment outside the sheriff's department. These actions would remain in effect until revoked by the sheriff.

After the suspension, Clark spoke with County human resources officials about other employment with the County. He was told to submit a resumé for consideration. He also received written materials, including descriptions of jobs he had said would interest him.

However, when Clark showed the materials to his union, the Riverside Sheriff's Association, he was advised that â€