Thomas v. City of
Angeles
Filed 12/6/12 Thomas v. City of Los Angeles CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
MALCOLM THOMAS,
Plaintiff and Respondent,
v.
CITY OF LOS
ANGELES,
Defendant and Appellant.
B229265
(Los Angeles
County
Super. Ct.
No. BC416182)
APPEAL from a judgment of the Superior
Court of
Mark V. Mooney, Judge.
Reversed and remanded for a new trial.
Carmen A. Trutanich, City Attorney,
Claudia McGee Henry, Assistant City Attorney, and Gregory P. Orland, Deputy
City Attorney, for Defendant and Appellant.
Law Office of Herb Fox, Herb Fox;
Schimmel & Parks, Alan I. Schimmel and Michael W. Parks for Plaintiff and
Respondent.
______________________
Plaintiff
Malcolm Thomas (Thomas), a police officer in the Los Angeles Police Department
(LAPD), brought suit against the City of Los Angeles
(City) for disability
discrimination and related claims. After a two-week jury trial, the jury returned
a verdict, finding the City liable to Thomas for disability
discrimination. The City appeals,
arguing that the trial court committed reversible error in giving an incomplete
written instruction on Thomas’s disability discrimination claim, an instruction
that differed from the oral instruction, and submitting a special verdict form
to the jury that did not conform to either the oral or written jury
instructions.
We agree
with the City that the trial court committed prejudicial error in its
instruction on Thomas’s disability discrimination claim. Accordingly, the judgment is reversed and the
matter is remanded for a new trial on that cause of action.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
In 1997,
Thomas began his employment with the LAPD.
In 2001, he transferred to the Transit Bus Division and from there he
applied to and became an investigator with the Los Angeles County District
Attorney’s Office. After six years, he
returned to the LAPD.
Shortly
thereafter, Thomas was invited to join the Arrest and Control/Physical Training
(ARCON/PT) unit. The purpose of the
ARCON/PT division is to train academy recruits and in-service officers on
arrest and control and physical training techniques.
In September 2007, Thomas
transferred to the training division as an ARCON/PT instructor. In order to become an instructor, Thomas was
required to become certified. An
instructor must also take a nine-part physical training examination that is
normally administered in three parts.
Once the instructor completes the last of the three tests, he or she is
certified by the LAPD as a primary instructor in physical training. By May 2008, Thomas had completed six
sections of the physical training examination.
On May 9, 2008, Thomas suffered a
training exercise at the LAPD recruitment training center. He suffered a torn meniscus and was put on
work restrictions. Specifically, Thomas
was prohibited from heavy lifting, squatting, crouching, kneeling, and running;
he was instructed to use his left knee minimally.
At some point after his injury,
Thomas was pressured and ordered to complete the last three sections of the
physical training examination. Even
though he had knee surgery scheduled for June 30, 2008, Thomas took the
test. The test exacerbated his knee
injury.
As scheduled, Thomas underwent knee
surgery on June 30, 2008.
On October 15, 2008, Thomas
returned to restricted duty, consisting of sedentary work only.
From October through November 2008,
Thomas was subjected to intense and repeated verbal abuse, hazing, harassing
conduct, and disparaging remarks in the workplace based upon his race and
perceived sexual orientation. He also
testified that he was subjected to harassment and a hostile work environment in
connection with his disabilities and work restrictions.
Thomas was placed off duty in
November 2008, and continued off duty until May 2, 2009.
Meanwhile, on January 29, 2009,
Thomas provided the LAPD with a medical note, titled “Stay Away Order,†from
his treating psychiatrist, Dr. Rodney D. Collins. According to Dr. Collins’s note, he had been
treating Thomas since November 24, 2008, for “acute Stress Disorder and
Major Depressive Disorder secondary to issues that have arisen regarding his
disability for a knee injury.â€
Dr. Collins opined that it was in Thomas’s best interest not to
“deal with issues†regarding the LAPD; thus Dr. Collins was “order[ing]â€
Thomas’s “supervisors and his department to stop contact†with him.
Captain Michelle Veenstra testified
that she was very concerned about Dr. Collins’s letter and Thomas
suffering from stress and major depression.
According to Captain Veenstra, it is “very serious, very severe†when a
physician indicates that an employee is suffering from more than just a knee
injury. Upon realizing the severity of
Thomas’s depression, Captain Veenstra made arrangements to contact a medical
liaison to talk about suspending Thomas’s police powers, for both his safety
and public safety.
On March 24, 2009, Thomas received notice
that the LAPD was removing him from payroll and cancelling his benefits.
On April 2, 2009, Thomas was
interviewed by Internal Affairs to discuss the alleged retaliation against him
and the loss of his pay and vacation/sick time and threatened loss of his
benefits and income. Four days later, he
received an order suspending his police powers and requiring him to relinquish
his gun, badge, and police identification.
Thomas’s Complaint
On June 19,
2009, Thomas filed a complaint against the City alleging causes of action for
: (1) Workplace harassment in violation
of the Fair Employment and Housing Act (FEHA); (2) Retaliation in violation of
FEHA; (3) Failure to investigate in violation of FEHA; (4) Discrimination in
violation of FEHA; (5) Retaliation in violation of statutory policy; and (6)
Declaratory and injunctive relief under FEHA.
In the fourth cause of action, Thomas lumps together his claims for
disability discrimination, racial discrimination, and sexual orientation
discrimination. Specifically, Thomas
alleges that the City discriminated against him “on the basis of his: a) actual and/or perceived medical
disability, impairment and/or condition; b) actual or perceived sexual
orientation; c) race.†“As a proximate
result of [the City’s] discrimination, [Thomas] suffered adverse employment
actions as a result of this discrimination.
[Thomas] requested, but was denied, reasonable accommodation for his
disabilities. [The City] failed to
engage in an interactive process with [Thomas] and acted in an unreasonable and
hostile manner towards [Thomas] and his disabilities. [The City] not only denied reasonable
accommodation to [Thomas] but [it] ordered and pressured [Thomas] to engage in
physical activities against medical advice as a condition of employment,
thereby causing bodily injury and suffering to [Thomas].â€
Thomas
further alleges that “[a]s a proximate result of [the City’s] discrimination,
[the City] also denied promotion and/or job benefits to [Thomas]. [The City] also stripped [Thomas] of
procedural and substantive rights as a sworn police officer and employee of the
LAPD.â€
Jury Instructions
In its oral
instructions, the trial court told the jury that in order for Thomas to
prevail, he had to establish that the City “violated his work restrictions by
denying reasonable accommodation for his disabilities, failure to engage in the
interactive process, denying promotional and job benefits to [Thomas].†The jury was also informed that it would be
provided with written copies of the instructions.
The written
instructions submitted to the jury provide that, in order to prevail, Thomas
was required to establish that the City “violated [his] work restrictions by
denying a reasonable accommodation to . . . Thomas†and that
“Thomas’s actual or perceived disability was a motivating reason for [the
City’s] denial of a reasonable accommodation.â€
There is no mention of violation of work restrictions or failure to
engage in the interactive process or the denial of promotional and job benefits.
Verdict and Judgment
The jury was given a special
verdict to complete. Questions 14
through 18 track the written jury instruction (CACI No. 2540):
“14. Did the . . . City know that
[Thomas] had an actual or perceived disability that limited his work
performance? [¶] . . . [¶]
“15.
Was [Thomas] able to perform the essential job duties with reasonable
accommodation for his actual or perceived disability? [¶]
. . . [¶]
“16.
Did the . . . City violate [Thomas’s] work restrictions,
deny reasonable accommodation for his disabilities, fail to engage in the
disability interactive process, suspend police powers or deny promotional or
job benefits to [Thomas]? [¶] . . . [¶]
“17.
Was [Thomas’s] actual or perceived disability a motivating reason for
the . . . City to violate [Thomas’s] work restrictions, deny
reasonable accommodation for his disabilities, fail to engage in the disability
interactive process, suspend police powers or deny promotional or job benefits
to [Thomas]? [¶] . . . [¶]
“18.
Was the . . . City’s conduct a substantial factor in
causing harm to [Thomas]?â€
On July 23, 2010, the jury returned
its special verdict, answering “YES†to question Nos. 14 through 18
its timely appeal ensued.
The City asks us to reverse the judgment and remand the
matter for a new trial on the grounds that the written jury instructions, which
differ from the oral instructions, conflict with the special verdict, which
differs from both the oral and written jury instructions.
I. Standard
of Review
“[T]here is
no rule of automatic reversal or ‘inherent’ prejudice applicable to any
category of civil instruction error, whether of commission or omission. A judgment may not be reversed for
instructional error in a civil case ‘unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage
of justice.’ [Citation.]†(Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)
“When
deciding whether an instructional error was prejudicial, ‘we must examine the
evidence, the arguments, and other factors to determine whether it is
reasonably probable that instructions allowing application of an erroneous
theory actually misled the jury.’
[Citation.] A ‘reasonable
probability’ in this context ‘does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ [Citation.]â€
(Kinsman v. Unocal Corp.
(2005) 37 Cal.4th 659, 682, italics omitted.)
II. The
Trial Court Committed Reversible Error
We
conclude that the trial court’s written instructions
were erroneous.
It seems that the trial court
improperly commingled two distinct claims based upon Thomas’s theories of
disability discrimination.
name="_ftnref4" title="">[4] To establish a prima facie case of physical
disability discrimination under FEHA, the employee must demonstrate that he is
disabled and otherwise qualified to do the job and was subjected to an adverse
employment action because of such disability.
(King v. United Parcel Service,
Inc. (2007) 152 Cal.App.4th 426, 432–433, fn. 2.)
The elements of a failure to
accommodate claim are similar, but there are important differences. (Cuiellette
v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [“‘The essential
elements of a failure to accommodate claim are:
(1) the plaintiff has a disability covered by the FEHA; (2) the
plaintiff is a qualified individual (i.e., he or she can perform the essential
functions of the position); and (3) the employer failed to reasonably
accommodate the plaintiff’s disability.
[Citation.]’ [Citation.]â€) In other words, the employee need not
establish that an adverse employment action was caused by the employee’s
disability; under the express provisions of FEHA, the employer’s failure to
reasonably accommodate a disabled individual is a violation of the statute in
and of itself. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 246.)
In spite of the distinctions
between these two types of claims, as set forth above, the elements were
conflated in the written jury instructions.
The jury was told that Thomas had to prove that his “actual or perceived
disability was a motivating reason for the [City’s] denial of a reasonable
accommodation.†This makes no
sense. How could Thomas’s disability
have been a motivating reason to deny him a reasonable accommodation? If the trial court was intending to instruct
the jury on Thomas’s burden on disparate treatment claim, then it should not
have mentioned the denial of a reasonable accommodation. (See, e.g., CACI No. 2540.)
intending to instruct the jury on Thomas’s denial of a reasonable accommodation
claim, then the question of whether Thomas’s disability was a motivating reason
behind the City’s decision would have been irrelevant. (See, e.g., CACI No. 2541.)
This
instructional error was prejudicial. The
written instructions were confusing and incomplete. (Mayes
v. Bryan (2006) 139 Cal.App.4th 1075, 1092 [jury must be instructed on the
law applicable to the theory of the case].)
And, in light of Captain Veenstra’s testimony, a different result was
reasonably probable. After all, the jury
could have concluded that the City had a legitimate reason for certain
employment decisions, such as suspending Thomas’s police powers, that were
made. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th
189, 201.) Yet, with blurred
instructions, the jury was not given the opportunity to make proper findings.
Exacerbating the prejudicial
error was the inconsistent special verdict
that Thomas only needed to prove that his disability was a motivating reason
for the City’s denial of a reasonable accommodation. However, the jury was asked by way of the
special verdict form to determine whether Thomas’s disability was a motivating
reason for the City to violate Thomas’s work restrictions, deny him reasonable
accommodation for his disabilities, fail to engage in the interactive process,
suspend police powers, or deny him
promotional or job benefits. Because the
jury was never told in the written jury instructions how to evaluate these
alternative adverse employment actions (other than the denial of a reasonable
accommodation), the jury could have been confused by the options given in the
special verdict.
title="">[8]
The fact that substantial evidence
may support each of the alternative findings in the special verdict form is
irrelevant. It is well-established that
a special verdict affords no presumption or implied findings in favor of one
party or the other. (
Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280,
285.)
All
remaining arguments, including the City’s claim that the trial court erred in
failing to instruct the jury that Thomas had the burden of proving that the
City acted with discriminatory intent, are moot.
DISPOSITION
The judgment is reversed. The matter is remanded for a new trial on
Thomas’s disability discrimination claim.
The City is entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
Acting P. J.
DOI
TODD
_______________________________,
J.
CHAVEZ
recitation of the facts is limited to those that are relevant to the issues
raised in this appeal.
name="_ftn2" title="">[2] The
jury found in favor of the City on all other claims.
