Hunt v. El Camino Com. College
Filed 3/21/13 Hunt v. El Camino Com. College CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
CARMEN HUNT,
Plaintiff
and Appellant,
v.
EL CAMINO COMMUNITY COLLEGE,
Defendant
and Respondent.
B235293
(Los
Angeles County
Super. Ct.
No. BC400227)
APPEAL
from a judgment of the Superior Court
of
County, Amy D. Hogue, Judge. Affirmed.
Roderick
& Arnold and Trina R. Roderick for Plaintiff and Appellant.
Law
Offices of Larry Frierson and Larry Frierson for Defendant and Respondent.
_________________________
INTRODUCTION
In
this action for damages for employment discrimination based on a disability of
plaintiff Carmen Hunt appeals from the judgment on a jury verdict in favor of
defendant El Camino Community College.
Hunt assigns as error the trial court’s ruling in limine precluding
evidence that Hunt was raped by a professor at El Camino College in 1982 (Evid.
Code, § 352). She contends that this
ruling was an abuse of discretion because the rape was critical evidence of the
nexus between her PTSD and her requests for accommodation to teach off campus. We conclude the trial court did not abuse its
discretion and affirm the judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
1. Factual
background
Hunt
commenced working as a full-time speech communications professor at the
El Camino College in the fall of 1980.
She teaches public speaking, small group communication, argument and
debate.
In
August 2002, Hunt suffered a severe anxiety attack and collapsed on the
college’s campus. Hunt entered the San
Marino psychiatric clinic where she was
medicated. She remained at the clinic
for a year and a half under psychiatric care.
Hunt received a diagnosis of PTSD caused by an incident in 1982 when she
claims she was raped by a dean on the college campus. Her psychologist testified that it is common
for PTSD to occur years after a sexual assault.
El Camino College does not dispute that Hunt suffers from PTSD.
At
Hunt’s request, El Camino College granted her 100 percent medical leave from
2002 until the fall of 2005. In 2004,
Hunt began therapy with psychologist Nanette de Fuentes, which continued
through the date of trial. Also at the
time of trial, Hunt was medicated under the care of a psychiatrist.
Hunt and Dr. de
Fuentes “figured out pretty early on
that [Hunt] could work, [she] just couldn’t work at El Camino.†In early 2004, Hunt explained to Dean Thomas
Lew “that [she] was having problems working at El Camino,†but would work
somewhere else. She proposed
participating in a faculty exchange program in Hawaii,
particularly Maui, where her uncle lived. Dr. Lew was supportive and told Hunt to apply
to the faculty exchange program. He
later denied her proposal.
Hunt also
requested the option of teaching online commencing in the summer of 2005. El Camino College denied this request because
it wanted to fill the on-campus class.
Hunt’s therapists
agreed that Hunt could return to teaching at the college in the fall of
2005. The college offered Hunt a
position to teach full time on campus, but Hunt rejected the offer because her
therapists believed she should commence teaching on a part-time basis. Hence, the college arranged for Hunt to
return to teaching on campus, part-time, i.e., a 40 percent load in the fall of
2005. Hunt taught two classes in the
morning, two days a week. Although the
classes she wanted to teach were not being offered that semester, she was
“glad†to be back in the classroom. She
began teaching full time in the spring of 2006 with additional restrictions, at
Dr. de Fuentes request, that limited her other campus responsibilities.
Between 2002 and
2010, Hunt submitted approximately 10 requests to teach on a study abroad
program in Spain. Despite twice being approved to teach in Spain
before 2002, each of the 10 requests Hunt submitted after her collapse was
denied. Hunt never applied to transfer
from El Camino College to another community college in the Los Angeles
area.
El Camino
College’s Human Resources Director called a meeting in February 2006 for
the express purpose of discussing accommodations for Hunt, specifically,
options for her to return to work full time.
Hunt was told it was a friendly meeting and not to bring
representation. At the meeting, the
Human Resources Director put a document in front of Hunt that would make her a
part-time instructor and no longer a full-time tenured faculty member. Hunt rejected the offer.
In addition to the
above described time off from work, Hunt took three medical leaves of absence
between 1980 and 2002. She also took
medical leave for hand surgery in 2005.
Hunt had eyelid surgery during a period when she was not working and a
tummy tuck in April 1994. She also had
gallbladder surgery in 2009. In 2010,
Hunt took time off because her father had cancer. Hunt suffered another PTSD-related episode in
the winter of 2010 and commenced medical leave on February 17, 2011.
She was on leave at the time of trial in March 2011.
Hunt testified
that El Camino College never terminated her employment; never served her with
charges to dismiss her from employment; never served her with a written
reprimand; and never took disciplinary action against her.
2. Procedural
background
After
receiving a right to sue letter, in April 2009 Hunt brought this lawsuit
against El Camino College seeking damages for violation of the Fair Employment
and Housing Act (Gov. Code, § 12940 et seq.) (FEHA) based on disability
discrimination.
title="">[1]
El
Camino College moved in limine under Evidence Code section 352 to exclude
evidence that Hunt was sexually assaulted in 1982. The college asserted that Hunt claimed she
was raped, and that the word “rape†was highly inflammatory and it was prejudicial
evidence because the statute of limitations had run, Hunt had never alleged
that the college was liable for her rape, and the vice president to whom she
claimed she reported the rape 20 years
later is deceased. By contrast, the
college asserted, it did not dispute that Hunt suffered a disability based on
stress, with the result the rape evidence had no probative value.
Hunt
opposed the motion arguing that the rape evidence was necessary to show that
she suffered from a severe, recognized disability; that her requests for
accommodation to teach off campus, either online or in an exchange, were
reasonable in light of the particular circumstances; and to show that El Camino
College failed to provide a reasonable accommodation under FEHA.
The
trial court partially granted the in-limine motion. The court ruled that the identity of the
alleged rapist was not material to Hunt’s case; the jury would be distracted by
the question of whether Hunt was raped and whether a college official was the
perpetrator; and El Camino College had no means by which to rebut the
evidence. The court allowed Hunt’s
witnesses to testify that Hunt attributed her PTSD to “an alleged incident in
1982 when she claims she was sexually assaulted on the El Camino Community
College campus†but that her witnesses could not testify about any other
details of the alleged rape.
During
trial, the court further limited its ruling.
It instructed witnesses outside the jury’s presence, “there shall be no
reference to any rape or assault by any faculty member or any other person,
dean, or anything else associated with [
college;†“[s]o the witnesses are not to
say or tell the jury that it was on campus, or that an administrator was
involved, or that it was a rape;†and “the witnesses [are] not
to . . . to
communicate that any sexual assault occurred on campus or in connection
with anybody at the college, because that’s not what this case is about.†(Italics added.)
The
jury sent the court the following question during deliberations, “(A) How many
years has Ms. Hunt been employed by El Camino College? And (B) During that
time, how many sick leaves, disability leaves, leaves of absence, etc has she requested
and been granted? [¶] (C)
How many months/years in total do the above granted leaves amount
to?†(Underlying in original.) The jury returned a verdict in favor of
El Camino College and against Hunt on all causes of action.
Hunt
moved for new trial. At the hearing on
the new trial motion, the court explained its view of the case that the jury
“understood the assault occurred on campus, that it was a sexual assault, and
that it induced her [PTSD]. I don’t
think they bought the idea that she should get special privileges to go and
teach in Hawaii and other places
as she was requesting.†The court denied
the new trial motion and Hunt filed her timely appeal.
CONTENTIONS
Hunt
contends that the trial court abused its discretion in excluding reference to
the word “rape,†which is the cause of her PTSD, and then preventing her
witnesses from testifying about any connection between El Camino College and
the attack.
DISCUSSION
1. Disability
discrimination in violation of FEHA
FEHA provides a
cause of action for an employer’s failure to provide a reasonable accommodation
for an employee’s known disability.
(Gov. Code, § 12940, subds. (a), (m).)
Among recognized disabilities are mental disabilities, which include
“any mental or psychological disorder . . . such
as . . . emotional or mental illness†that “limits a major
life activity.†(Gov. Code, § 12926,
subd. (j)(1).) “ ‘Under the express
provisions of the FEHA, the employer’s failure to reasonably accommodate a
disabled individual is a violation of the statute in and of itself.’ [Citations.]
Similar reasoning applies to violations of Government Code section
12940, subdivision (n), for an employer’s failure to engage in a good faith
interactive process to determine an effective accommodation, once one is
requested. [Citations.]†(Gelfo
v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
“Two principles underlie a cause of action for failure
to provide a reasonable accommodation.
First, the employee must request an accommodation. [Citation.]
Second, the parties must engage in an interactive process regarding the
requested accommodation and, if the process fails, responsibility for the
failure rests with the party who failed to participate in good faith. [Citation.]
While a claim of failure to accommodate is independent of a cause of
action for failure to engage in an interactive dialogue, each necessarily
implicates the other.†(
140 Cal.App.4th at p. 54.)
2.
relevant to her disability discrimination cause of action.
“The
court’s ruling on a motion in limine is reviewed for abuse of discretion. [Citation.]â€
(Piedra v. Dugan (2004) 123
Cal.App.4th 1483, 1493.) We will disturb
the court’s exercise of discretion only upon a clear showing of abuse. (Gouskos
v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 761-762.) A court abuses its discretion by acting in an
arbitrary, capricious, or patently absurd manner that results in a manifest
miscarriage of justice. (People v.
Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Under
Evidence Code section 352, “[t]he court in its discretion may exclude evidence
if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†The record must
“ ‘affirmatively show that the trial court weighed prejudice against
probative value.’ †(
1237.)
“Evidence Code
section 352 is designed for situations in which evidence of little evidentiary
impact evokes an emotional bias.
[Citation.]†(
31 Cal.App.4th 1355, 1369-1370, disapproved on other grounds by
901, fn. 3.) “ ‘ “ ‘The
“prejudice†referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an
individual and which has very little effect on the
issues. . . . ‘[T]he
statute uses the word in its etymological sense of “prejudging†a person or
cause on the basis of extraneous factors.
[Citation.]’ [Citation.]†[Citation.]
In other words, evidence should be excluded as unduly prejudicial when
it is of such nature as to inflame the emotions of the jury, motivating them to
use the information, not to logically evaluate the point upon which it is
relevant, but to reward or punish one side because of the jurors’ emotional
reaction. In such a circumstance, the
evidence is unduly prejudicial because of the substantial likelihood the jury
will use it for an illegitimate purpose.’
[Citation.]†(
439.)
Here, the court
granted El Camino College’s motion in limine in part only, by allowing evidence
that Hunt was sexually assaulted in 1982, but disallowing the use of the word
“rape,†reasoning that the college could not rebut the story and the identity
of the assailant was not material, while the word would distract the jury. The court later restricted the evidence
further to preclude connecting the attack with the college. We conclude the trial court exercised its
discretion.
On the question of
the probative value of the attack, El Camino College never disputed Hunt
suffered from PTSD and so there was no issue in this case about whether Hunt
suffered a disability. (Gov. Code, §
12926, subd. (j).) Also, Hunt testified
that because of her PTSD, she could not work on campus. Consequently, the cause of Hunt’s disability, namely the 1982 sexual assault and its
connection to the El Camino College campus, was not relevant to the questions
the jury had to resolve, i.e., whether the college reasonably accommodated
Hunt.
By contrast, the
word “rape†is extremely vivid and triggers a highly emotional response which
would understandably ignite the jury’s emotions. Also, the trial court reasonably concluded
the testimony would confuse and distract the jury from the relevant
issues. Where the source of Hunt’s
disability was not at issue, the emotional impact of using the evidence would
vastly outweigh the probative value of the evidence. Indeed, given the cause of Hunt’s disability
was not material, the trial court’s in limine ruling actually helped Hunt by
allowing her to inform the jury that she was sexually assaulted, which would
understandably engender sympathy for her.
By carefully fashioning a ruling that allowed evidence of Hunt’s sexual
assault, the court enabled Hunt to explain the source of her PTSD without
evoking any unnecessary or unfair emotional bias against the college. Therefore, the record shows the court
exercised its discretion judiciously by weighing the probative value of the
word “rape†against its prejudicial effect, as required by Evidence Code
section 352.
Hunt argues that
characterizing the rape as sexual assault improperly diminished the gravity of
the attack. Rape is a form of sexual
assault. (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 221
[employing terms “rape†and “sexual assault†interchangeably];
372, 385 [“rape or other assaultive sexual behaviorâ€]; Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d
1009, 1025 [characteristics of rape trauma syndrome are “the type of behavior a
lay juror would normally associate with a sexual assaultâ€];
1294, 1315 [rape is a “ ‘ “sexually assaultive
behavior†’ â€].) More
important, however, using the word “rape†would have improperly inflamed the
jury and could have likely prompted them to use the information to punish El
Camino College where the jury was otherwise not required to decide whether Hunt
suffered a disability.
Notwithstanding
the order partially granting El Camino Colleges’ motion in limine was proper,
Hunt obliquely argues the ruling harmed her.
(People v. Jackson (1985)
174 Cal.App.3d 260, 266 [we review trial court error under Evid. Code, §
352 to determine whether it is reasonably probable that a result more favorable
to the appellant would have occurred in absence of error].) She first contends that the ruling prevented
her from demonstrating the reasonableness of her accommodation request because
the court excluded evidence that the assault occurred on campus. We disagree.
Hunt’s accommodation
requests would not have sounded any more reasonable to the jury if the word
“rape†were used or the assault were directly connected to the campus. The jury heard that Hunt was sexually
assaulted and that because of her disability, Hunt was unable to work on
campus. Her opening statement mentioned
her inability to work on campus and Hunt testified that she told Dr. Lew as
much. She testified she and Dr. de
Fuentes “figured out pretty early on
that [she] could work[; she] just
couldn’t work at El Camino.â€
(Italics added.) Hunt is really
arguing that the in-limine ruling prevented her from showing that the college
violated FEHA in its refusal to provide her with the accommodation she
or to teach public speaking, communication, argument, and debate online. But, “[t]he employer is not obligated to choose the best
accommodation or the accommodation the employee seeks. [Citation.]â€
(Hanson v. Lucky Stores, Inc.
(1999) 74 Cal.App.4th 215, 228; Soldinger
v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370).
heard that Hunt did
not seek to work at another campus in the community college system in the Los
Angeles area.
Hunt
next contends that as the result of the in-limine ruling, she was unable to
prove El Camino College’s discriminatory motive. She argues, “for the jury to properly assess
El Camino [College’s] discriminatory animus in refusing to accommodate [her]
PTSD, it needed an accurate picture of the event that triggered that PTSD and
its connection to the very officials trying to retaliate against Hunt.†Apart from the fact this argument conflates
numerous elements of employment discrimination, the contention is unavailing
for two reasons. First, the college had
no reason to protect itself from liability for the attack by discriminating
against her or otherwise because the statute of limitations had run (Code Civ.
Proc., § 335.1). Second, the jury heard
that Hunt complained of the 1982 sexual assault to at least two members of the
faculty or administration in 1990 but that
no discriminatory conduct occurred in the intervening 15-year period until
purportedly 2004, and so the jury could reasonably conclude there was no
connection between the attack and the alleged
2002 Hunt collapsed and went on 100 percent disability until August 2005. It also heard about the numerous leaves Hunt
had taken over the years. During
deliberations, the jury’s question specifically asked for a tally of the sick
leaves, disability leaves, leaves of absence that Hunt had been given. We can only conclude from this inquiry that
the jury found El Camino College did accommodate Hunt by keeping her job open
for her during her three year disability
then allowing her to return part time but with full pay until the spring of
2006, and that otherwise Hunt could and did work on campus. In sum, no amount of testimony about the
attack would have resulted in a more favorable verdict for Hunt. (People
v. Jackson, supra, 174 Cal.App.3d
at p. 266.)
DISPOSITION
The
judgment is affirmed. Each party to bear
its own costs on appeal.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
KITCHING,
J.
negligence per se, and hostile work environment based on sexual harassment
unrelated to the attack. Her appeal does
not raise any issues with respect to those causes of action and so we do not
address them.
v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, cited by Hunt does not
advance her argument, for among other reasons, it involved the reversal of a
summary judgment, not a trial. (
would occur in Jensen,
evidence of the cause of Jensen’s PTSD.
“A decision, of course, is not authority for what it does not
consider.†(Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 348.)
