Vasquez v.
Filed 3/5/12 Vasquez v. Del Rio Sanitarium CA2/5
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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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
CHRISTINA VASQUEZ,
Plaintiff and Respondent,
v.
DEL RIO SANITARIUM, INC.,
Defendant and Appellant.
B231327
(Los Angeles
County Super.
Ct.
No. BC411724)
APPEAL from
a judgment of the Superior Court
of
County, Victor E. Chavez, Judge. Affirmed.
Tredway,
Lumsdaine & Doyle, Matthew L. Kinley and Pamela K. Tahim for Defendant and
Appellant.
Employment
Lawyers Group and Karl Gerber for Plaintiff and Respondent.
___________________________________
Defendant
and appellant Del Rio Sanitarium, Inc., appeals from a judgment following a
jury trial in favor of plaintiff and respondent Christina Vasquez in this
action for pregnancy discrimination in
violation of the Fair Employment and Housing Act (FEHA)(Gov. Code, § 12900 et
seq).
title="">[1] Del Rio contends: 1) the
trial court erred by excluding evidence of Vasquez’s absences from work;
2) the trial court erred by excluding
expert testimony on the requirements for medical certification; 3) the trial court erred by excluding certain
testimony about expert fees; 4) Del Rio
was entitled to judgment as a matter of law, because Vasquez could not perform
the essential functions of her job even with accommodation; 5) the award of past economic damages was
excessive; 6) the award of future
damages failed to account for mitigation; and 7) the amounts awarded for past and future
noneconomic damages were inconsistent with the jury’s finding that Vasquez did
not suffer severe emotional distress and were not supported by
court’s evidentiary rulings, ample evidence to support the finding that Vasquez
could perform the essential duties of her job following a temporary job
restructuring or transfer to light duty work, and there was sufficient evidence
to support the jury’s award of damages.
We affirm.
FACTS AND
PROCEDURAL BACKGROUND
Employment History and
Separation
Vasquez received her nursing
certification in 2004. She worked as a
certified nursing assistant for approximately one month in June 2004. After an employment gap of two and a half
years, she was hired to work at Target in November 2006. She took a second job as a certified nursing
assistant at Del Rio’s convalescent hospitals in
June 2007. Vasquez resigned her Target
job when Del Rio began scheduling Vasquez
for weekend work that conflicted with her schedule at Target.
Vasquez’s direct supervisor at Del Rio was director of staff
development Morena Elizabeth Aguilar.
The licensed vocational nurse supervisor was Lisa Madison. Aguilar and Madison both reported to assistant
administrator Jerry Maxwell, who reported to administrator Mark Gardiner.
On October
17, 2008, Vasquez requested a one-week leave of absence because she was not
feeling well, she felt weak, tired and dizzy, had anxiety, and a rapid
heartbeat. Her doctor diagnosed her as
having anemia. Iron supplements and vitamins improved her
symptoms.
On December
26, 2008, Vasquez went to gynecologist Chang Joon Lee, who confirmed that she was
six weeks pregnant. Dr. Lee said there
was a risk of miscarriage in the early stages of pregnancy, so he advised her
to take it easy, rest and not lift heavy items.
Dr. Lee gave her a note stating, “No heavy lifting, not more than 11
pounds” and “may return to work on December
29, 2008.” The note reflected that Dr. Lee
worked in obstetrics and gynecology.
On December
29, 2008, Vasquez provided her doctor’s note to Del Rio.
inquire about the lifting restriction.
The parties’ accounts of the conversation differ, but it is undisputed
that after the conversation, Vasquez went home.
Madison told Gardiner that Vasquez
had a lifting restriction due to pregnancy and asked him to speak with Vasquez.
On January
2, 2009, Vasquez went to Del Rio and asked to speak with
Gardiner. He met with her in the
lobby. He told her that pregnant women
can do many of the same duties as women who are not pregnant, and Del Rio did
not have light duty work for certified nursing assistants unless the
restriction was due to a work-related injury.
He told her to go to her doctor, find out why she had the lifting
restriction and try to get it removed.
Vasquez said she would check with her doctor.
Vasquez went to her doctor on
January 5, 2009, but he did not remove the lifting restriction. That day, Vasquez sent a letter to Maxwell by
certified mail informing him as follows.
She stated that she had brought a copy of her doctor’s note to the front
office on December 29, 2008. Aguilar had
been aware of the note, but did not send her home. However, Madison sent her home on January 1,
2009, when she found out that Vasquez could not lift more than 11 pounds. Madison told Vasquez to return to her doctor
and have him take away the restriction or she could not come to work. Vasquez spoke with Aguilar afterward, and
Aguilar confirmed that Vasquez needed to get a new doctor’s note without the
lifting restriction or she could not be at work. Vasquez had not been able to work her
scheduled shifts since she was sent home.
She had returned to her doctor.
Her doctor advised her to speak with her supervisor, because Del Rio
should be able to accommodate her. She
requested an opportunity to discuss options at work which would not require her
to lift more than 11 pounds. She stated
that other than lifting, she was able to perform all of her job
requirements. She was also open to other
job positions, light duty, or other options that might be available. She asked Maxwell to contact her at his
earliest convenience to discuss options in more detail.
Vasquez’s telephone records reflect
that she made a one-minute telephone call to Del Rio on January 6, 2009. Her letter was received at Del Rio on
January 7, 2009. Maxwell discussed the
letter with Gardiner and gave the letter to either Madison or Gardiner.
Vasquez called Del Rio twice on
January 7, 2009. The calls lasted one
minute and three minutes. Vasquez made a
three-minute call to Del Rio on January 9, 2009. Vasquez’s telephone records do not show any
call to or from Del Rio on January 12, 2009.
In fact, Vasquez received no incoming calls from Del Rio on her
telephone during this time.
name="_ftnref3" title="">[3]
The Employment Development
Department (EDD) mailed a notice to Del Rio on January 15, 2009, stating that
Vasquez had applied for unemployment benefits.
It showed the last day worked was January 1, 2009, and the effective
date of her claim was January 4, 2009.
The reason given for her separation from employment was that her
employer would not accommodate her doctor’s restrictions.
Del Rio received the notice from EDD
on January 21, 2009. Del Rio employee
Johanna Munoz wrote on the EDD form, “Employee brought in a [doctor’s] note
stating she is pregnant, and cannot lift [more than 11 pounds.] Employee was offered light duty, but didn’t
want to take it. Her [doctor] limited
her from working.” Munoz signed the form
on January 21, 2009.
Aguilar prepared a “Job Abandonment”
form on January 22, 2009, which stated that the effective date of Vasquez’s
termination was January 4, 2009, due to her filing for unemployment. She wrote, “Employee has been absent from
work without contacting the facility [on January 2, 2009,] and is considered to
have abandoned his/her job.” She stated
that she had called Vasquez on January 12, 2009, at Gardiner’s request, to let
her know that it was okay for her to return to work. Vasquez said she would talk to Gardiner, but
never did.
Another employee prepared a
“Termination/Resignation Report.” The
report stated that it was prepared on January 4, 2009, and the effective date
of Vasquez’s termination was January 4, 2009.
It stated that Vasquez was terminated “due to filing for unemployment”
and was not eligible for rehire. Maxwell
signed the form and dated his signature January 4, 2009. However, Maxwell testified at trial that the
document was generated after Del Rio received notice that Vasquez filed for
unemployment benefits. He believed that
under EDD’s instructions, any individual filing for unemployment was considered
“self-terminated.” Maxwell stated that
he dated his signature with the effective date, rather than the date that he
signed it.
At some point, Gardiner wrote on the
bottom of Vasquez’s January 5, 2009 letter that Aguilar called Vasquez on
January 12, 2009, and offered her two weeks of light duty work, but she did not
want to come back.
Prior to her separation from
employment, Vasquez worked approximately 40 hours per week at a salary of $9.00
per hour. In 2008, Vasquez earned
$14,647.50. She started looking for work
immediately and kept a list of the employers to which she applied.
On April 13, 2009, Vasquez filed a
complaint against Del Rio for pregnancy discrimination under section 12900 et
seq., discrimination in violation of the California Constitution, violation of
Labor Code section 1102.5, subdivision (c), wrongful termination in violation
of public policy, and intentional infliction of emotional distress.
Vasquez never stopped looking for
work, even when her baby was born in August 2009. She sent in more than 30 applications and
looked at job listings every day. Vasquez was miserable as a result of her
termination. She had nightmares from it
and regularly relived her conversations with Madison and Gardiner. She could not sleep at night, thinking about
how she was treated. The nightmares
lasted through 2009. Instead of being
happy about her pregnancy, she felt very bad because she and her boyfriend
could not afford to move out of his parent’s house to an apartment, and she
could not support her baby or pay her bills.
Her emotional distress symptoms improved as time passed.
Before trial, Target hired Vasquez
for a seasonal, part-time job earning $9.00 per hour. She began orientation for the job on November
23, 2010. A jury trial commenced on
November 29, 2010.
Additional
Evidence Offered by Vasquez
Vasquez
testified to having the following conversation with Madison on January 1,
2009. When Madison asked why she could
not lift more than 11 pounds, Vasquez asked to speak with her in private, then
explained that she was pregnant and her doctor had restricted her not to lift
more than 11 pounds. Madison said
Vasquez could not be at work with her restriction and needed to go to the doctor
to have the restriction removed. Vasquez
said that the doctor gave her the restriction, and she was concerned about her
pregnancy. Madison said Vasquez could
speak with Maxwell, but he would also tell her that she could not be at work
with the restriction. Madison sent
Vasquez home.
On January 2, 2009, when Vasquez
spoke with Gardiner, she explained that she was pregnant and her doctor had
given her a note restricting her from lifting more than 11 pounds. She provided details of her conversations with
Aguilar and Madison. Gardiner told her
that Del Rio did not have to accommodate her restriction. He said that if she had been injured at work,
they would accommodate her, but because her restriction resulted from something
outside of work, they did not have to accommodate her. Vasquez asked for a letter explaining why she
was not being allowed to work, because she did not want to be accused of
abandoning her job. Gardiner refused to
provide a letter. Vasquez asked what
would happen if she came to work for her next scheduled shift. He said she could sit and wait in the lobby
all day, but she would not be paid for it.
She said that she had worked with pregnant women in the past who had
performed lifting. Three people are
required to lift a patient, but only two people do the actual lifting and one
holds the wheelchair steady. Other
pregnant employees had held the wheelchair.
He told her that pregnant employees do the same things that they did
before they got pregnant, and he advised her to go to the doctor to have him
remove the lifting restriction.
Gardiner testified that an
individual who required light duty work was not accommodated unless it was a
work-related injury that caused the light duty restriction. During Gardiner’s employment at Del Rio, a
pregnant employee was allowed light duty work because she had a work-related
injury. Employees receiving workers’
compensation are paid whether they are at home or at work, so Del Rio attempts
to find them work and tries to help get them back to work.
Vasquez testified that she wrote to
Maxwell on January 5, 2009, because she wanted to discuss her pregnancy, the
doctor’s restriction, and other positions that might be available, such as
housekeeping, bed-making, or laundry.
Each time that she called Del Rio in January, Vasquez asked to speak
with Aguilar or Gardiner, but she was never put through. As far as Vasquez knows, Del Rio never called
to offer her light duty work. If Del Rio
had offered light duty work, she would have taken it.
Additional Evidence Offered
by Del Rio
Madison testified that she did not
tell Vasquez on January 1, 2009, that she could not work. Madison told Vasquez that she was not sure if
Vasquez could work and needed to speak with an administrator. During Madison’s employment at Del Rio, more
than five certified nursing assistants have had light duty restrictions. Madison testified that certified nursing
assistants with light duty restrictions covered through workers’ compensation
were permitted to work, but pregnant certified nursing assistants with light
duty restrictions were not. There was
light duty work in January 2009 that a certified nursing assistant could
perform, such as folding laundry, watching the parking lot, or several patient
care tasks. If Vasquez’s light duty
restriction had been caused by a work injury, she would have been allowed to
work with light duty restrictions for more than two weeks.
Madison also testified that Gardiner
told her to call Vasquez and offer her two weeks of light duty work. Madison claimed to have spoken with Vasquez
on January 6 or 7, 2009, although she was not Vasquez’s supervisor and
Vasquez’s telephone records do not reflect any incoming telephone calls from
Madison. Madison did not know the
telephone number that she called to reach Vasquez, but said that she probably
got the number from an employee phone book.
She did not offer any specific work to Vasquez but told her that
Gardiner said she could come back. She
might have told Vasquez that she could come back for two weeks. She claimed Vasquez declined and said she
would speak with Gardiner to explain her reasons. She told Gardiner that Vasquez was going to
call and speak with him.
Aguilar testified that she did not
learn Vasquez was pregnant until January 1, 2009, when Madison told her that
Vasquez had a note with limitations, and she had sent Vasquez home. Gardiner told her to call Vasquez, so she
called Vasquez from Del Rio on January 12, 2009. She told Vasquez that Gardiner wanted her to
return to work and to come talk to him.
Gardiner would explain the work that she would be doing.
Gardiner testified that even if
Vasquez had come back to work, she would not have been allowed to more than two
weeks of light duty work.
Dr. Lee does not remember talking to
Vasquez about the lifting restriction or her employer’s concerns about the
lifting restriction after December 26, 2009.
However, he believes a nursing assistant can work with an 11-pound
lifting restriction and his records show that he saw Vasquez on January 5,
2009.
Del Rio’s expert Dr. Felice Gersh
explained general medical guidelines for pregnancy. She has never seen an 11-pound lifting
restriction before. She testified that
an 11-pound lifting restriction was unreasonable, and the average pregnant
woman would be unable to function under such a restriction.
Verdict and
Posttrial Proceedings
On
December 3, 2010, the jury returned its verdict. The jury found that the requirement that a
certified nursing assistance must be able to lift more than 11 pounds was
reasonably necessary for the operation of Del Rio’s business. However, the jury found one or more of the
following to be true: Del Rio did not
have a reasonable basis to believe all certified nursing assistants who cannot
lift more than 11 pounds are unable to safely and efficiently perform the job,
or it was not highly impractical to Del Rio to consider whether a particular
certified nursing assistant unable to lift more than 11 pounds could safely and
efficiently perform her job, or it was not highly impractical for Del Rio to
rearrange the job responsibilities of a certified nursing assistant to avoid
lifting more than 11 pounds.
In addition, the jury found that
Vasquez’s pregnancy limited her ability to lift more than 11 pounds, and Del Rio
was informed of her limitation. Vasquez
was able to perform her essential job duties with reasonable accommodation for
her pregnancy. With reasonable
accommodation, the 11-pound lifting restriction did not endanger the health and
safety of others more than certified nursing assistants without the
restriction. Del Rio failed to provide
her with reasonable accommodation for her lifting restriction, and this failure
was a substantial factor in causing her harm.
The jury found that Del Rio
discharged Vasquez, and Vasquez’s pregnancy was a motivating reason for the
discharge. The discharge was a
substantial factor in causing Vasquez harm.
The jury found Vasquez suffered damages of $196,760, which consisted of
lost earnings of $35,880, future lost earnings of $35,880, noneconomic loss of
$75,000, and future noneconomic loss of $50,000.
Del Rio filed a motion for a new
trial on the grounds of erroneously excluded evidence and excessive
damages. Del Rio also filed a motion for
judgment notwithstanding the verdict.
Both motions were denied. Del Rio
filed a timely notice of appeal from
the judgment.
DISCUSSION
I. General Pregnancy Discrimination Law
The FEHA prohibits employment
discrimination based on sex and other protected classifications. (§ 12940.)
“Pregnancy discrimination is a form of sex discrimination. [Citations.]”
(Spaziano v. Lucky Stores, Inc. (1999)
69 Cal.App.4th 106, 109-110 (Spaziano).)
12945 of the FEHA is based on the federal Pregnancy Discrimination Act (PDA)
(42 U.S.C. § 2000e(k)) and sets forth employment practices that constitute
pregnancy discrimination, including practices relating to pregnancy leaves and
temporary light duty assignments. (
p.110; Williams v. MacFrugal’s Bargain
Close-outs, Inc. (1998) 67 Cal.App.4th 479, 483.) Section 12945, subdivision (b)(1) requires an employer
“to provide reasonable accommodation for an employee for conditions related to
pregnancy, childbirth, or related medical conditions, if she so requests, with
the advice of her health care provider.”
If an employer has a policy or practice requiring or authorizing the
transfer of temporarily disabled employees to less strenuous or hazardous
positions for the duration of the disability, it is an unlawful employment
practice to refuse to transfer a pregnant female employee who so requests. (§ 12945, subd. (a)(3)(B).) Similarly, under section 12945, subdivision
(a)(3)(C), it is an unlawful employment practice “[f]or an employer to refuse
to temporarily transfer a pregnant female employee to a less strenuous or
hazardous position for the duration of her pregnancy if she so requests, with
the advice of her physician, where that transfer can be reasonably accommodated. However, no employer shall be required by
this section to create additional employment that the employer would not
otherwise have created, nor shall the employer be required to discharge any
employee, transfer any employee with more seniority, or promote any employee
who is not qualified to perform the job.”
II. Evidentiary Issues
Del
Rio contends that the trial court abused its discretion by excluding evidence
in three areas: absences from work, the
industry standard for medical certification, and payment of an expert
witness. No abuse of discretion has been
shown.
A. Standard of Review
“‘To
preserve an evidentiary ruling for appellate review, the
proponent of the evidence must make an offer of
The offer of proof must
address the “substance, purpose, and relevance of the excluded evidence” (Evid.
Code, § 354, subd. (a)), and must set forth the actual evidence to be produced
and not merely the facts or issues to be addressed and argued [citation]. The trial court may reject a general or vague
offer of proof that does not specify the testimony to be offered by the
proposed witness. [Citations.]’ [Citations.]”
(Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 329.)
We review the trial court’s
for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006)139 Cal.App.4th 1356,
1419.) “ ‘ “In the absence of a clear
showing that its decision was arbitrary or irrational, a trial court should be
presumed to have acted to achieve legitimate objectives and, accordingly, its
review.” [Citation.]’ [Citation.]”
(Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21,
45.) Even when evidence has been
improperly excluded, reversal is only proper where there is a reasonable
probability that a more favorable result would have been reached. (Tudor Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th
1422, 1431-1432; see also Cal. Const., art. VI, § 13 [judgment will not be
reversed for improper exclusion of evidence absent miscarriage of justice].)
Work Absences
Del
Rio contends that the trial court abused its discretion by excluding evidence
of Vasquez’s absences from work. After
reviewing the argument and offer of proof on this issue, we find no abuse of
discretion.
Additional Facts
Prior to trial, Vasquez filed a
motion in limine to exclude evidence of her absences from work prior to
separation, because there was no claim that she was terminated for excessive
absences. Del Rio opposed the motion on
the ground that Vasquez’s attendance record showed increasingly frequent absences
and apathy toward her job, which supported Del Rio’s claim that she abandoned
her job. In addition, Del Rio argued
that Vasquez’s absences were relevant to any determination of damages, because
the absences showed Vasquez had emotional issues prior to her separation from
Del Rio and was not likely to have worked consistently. The trial court ruled that the parties could
not discuss the issue in opening statements and the admissibility of the
evidence would be considered during trial.
During cross-examination of Vasquez,
Del Rio attempted to ask about her work absences. Del Rio did not seek to introduce all of
Vasquez’s work absences, but only those related to symptoms for which Vasquez
was seeking noneconomic damages, specifically, fatigue, depression, and
anxiety. Vasquez argued that absences in
2007 and 2008 did not relate to her symptoms a year later. She noted that Del Rio was not claiming she
had been terminated for any reason. The
trial court pointed out that Vasquez had not testified to having any anxiety or
depression caused by the termination.
Del Rio responded that Vasquez had testified about nightmares and not
feeling well. Del Rio argued that
Vasquez had been absent 28 days in 2008, most of which were attributed to not
feeling well, and some of which were for the same symptoms for which she was
seeking emotional distress damages.
The trial court asked Del Rio which
absences related to symptoms for which Vasquez was seeking emotional distress
damages. Del Rio began pointing to
absences on a list that were attributed to “not feeling well,” but the trial
court concluded that the offer of proof was consuming undue time while the jury
waited. There is no explicit ruling on
the record, but the court stated, “I will let you reopen if I change my
mind. The ruling will stand. But I want you to parse it down to show me
precisely what it is you want to show and what you think is appropriate, what
you think is relevant. . . . If we
finish with the witness today, I’ll let you reopen to go into that, if I allow
that.” Del Rio asked to provide an
additional reason why the absences were relevant. The court stated, “I don’t want to hear any
more. . . . I want to talk to you when
the jury is not here.” The court
concluded by saying, “We’ll take it up afterwards. Once you’re in a position to tell me
precisely which ones of these you want to introduce into evidence or have the
jury look at, I’ll reconsider it.”
Del Rio questioned Vasquez about her
leave of absence in October 2008 without objection. She stated that she saw her doctor because
she was not feeling well, by which she meant that she felt weak and tired. She stated that her symptoms for which she
took the leave of absence were not the same as those related to her emotional
distress claim. She stated that rapid
heartbeat was a symptom similar to her claim in this case. The record does not reflect that Del Rio made
any further attempt to introduce evidence of Vasquez’s absences.
2. Analysis
Del Rio’s offer of proof at the time
of trial was insufficient. The absences
that Del Rio sought to introduce did not match the evidence of the symptoms for
which Vasquez was seeking damages. The
offer of proof was insufficient to conclude that absences attributed to “not
feeling well” were based on the same symptoms for which Vasquez was claiming
damages. With the jury standing by, Del
Rio pointed to different absences on a list and argued for admissibility. The haphazard presentation threatened to
consume undue time under the circumstances.
The trial court limited Del Rio’s ability to inquire into absences at
that time, but the court was willing to hear further argument on the
admissibility of the evidence at an appropriate time. The record does not reflect that Del Rio
sought to obtain any additional ruling on the admissibility of Vasquez’s
absences. No abuse of discretion has
been shown.
Medical Certification Requirements
Del
Rio contends the trial court erred by excluding Dr. Gersh’s testimony about the
“industry standard” for medical certifications based on California Code of
Regulations, title 2, section 7291.10.
However, there was no evidence that Del Rio required medical
certification. Therefore, the industry
standard or statutory requirements for medical certification are
irrelevant. No abuse of discretion has
been shown.
1. Additional Facts
Prior to trial, Vasquez filed a
motion in limine seeking to prevent Dr. Gersh from testifying that an 11-pound
lifting restriction was unreasonable or improper, on the ground that a medical
certificate that meets statutory requirements cannot be questioned by the
employer. Del Rio argued Dr. Gersh would
testify that Vasquez’s medical certification failed to comply with statutory
requirements. Therefore, Del Rio was not
required to accept it as sufficient, and Dr. Gersh could testify that the
lifting restriction was unreasonable.
The trial court granted the motion to exclude Dr. Gersh’s testimony on
this issue. However, during trial, the
court modified its ruling. The court
allowed Dr. Gersh to testify that the 11-pound lifting restriction was
unreasonable. The court excluded Dr.
Gersh’s expert testimony about the adequacy of the medical certificate.
Analysis
Fair Employment and Housing Commission has promulgated regulations interpreting
the FEHA. (See § 12935, subd. (a); Cal.
Code Regs., tit. 2, § 7286.4.) California Code of
Regulations, title 2, section 7291.10, subdivision (b) provides for
medical certification as follows in pertinent part: “
a condition of granting a pregnancy
may require medical certification,
as defined in section 7291.2, subdivision (d), if the employer
requires certification of other
similarly situated employees. If the certification
satisfies the requirements of section 7291.2,
subdivision (d), the employer must accept it as
sufficient.” “The employer
may not ask the employee to provide additional information beyond that allowed
by these regulations.” (
Under California Code of
Regulations, title 2, section 7291.2, subdivision (d), “certification” is “a
written communication from the health care provider of the employee that either
the employee is disabled due to pregnancy or that it is medically advisable for
the employee to be transferred to a less strenuous or hazardous position or to
less strenuous or hazardous duties.” A
certification that it is medically advisable for the employee to be transferred
should contain:
“(A) The date on which the need
to transfer became medically advisable; [¶]
(B) The probable duration of the
period or periods of the need to transfer; and [¶]
(C) An explanatory statement
that, due to the woman’s pregnancy, the transfer is medically advisable.” (Id.,
subd. (d)(2).)
In this case, Vasquez advised Del
Rio of her need for accommodation.
California Code of Regulations, section 7291.10, subdivision (b), allows
employers to require medical certification as a condition of granting a
transfer to less strenuous or hazardous duties.
There is no evidence, however, that Del Rio required medical
certification in accordance with section 7291.10, subdivision (b). In other words, there is no evidence that Del
Rio required Vasquez provide a written communication from her doctor showing
the date that the restriction became advisable, the probable duration of the
restriction, and a statement that the restriction was medically advisable due
to her pregnancy. Del Rio did not
distribute an employee handbook or other notice to employees stating that Del
Rio required medical certification. When
Del Rio learned of Vasquez’s need for accommodation, Del Rio did not provide
her with any paperwork requesting medical certification. None of the staff members that she spoke with
asked her for information that is permissible for an employer to require under
California Code of Regulations section 7291.10, subdivision (b). Instead, Del Rio employees told her that
pregnant employees can do all the same things that they did before pregnancy,
the restriction would not be accommodated, and to have her doctor remove the
restriction. Because there is no
evidence that Del Rio required Vasquez to provide medical certification,
Dr. Gersh’s proposed testimony about whether Dr. Lee’s note satisfied the
statutory requirements or the industry standard for medical certification is
irrelevant. No abuse of discretion has
been shown.
D. Expert Witness’s Hourly Rate
Del Rio contends the trial court
abused its discretion by excluding certain testimony about Dr. Gersh’s hourly
rate. We disagree
1. Additional Facts
During Del Rio’s direct examination
of Dr. Gersh, she testified she was paid $2,000 to review Vasquez’s medical
records and discuss the matter with the attorneys. On cross-examination, Dr. Gersh stated that
she was being paid $800 per hour to testify.
She had set aside the entire day to come to court, so she would be paid
$4,200 for her work that day.
In re-examining Dr. Gersh, Del Rio’s
attorney asked what her standard hourly rate was for all cases. The trial court raised its own objection to
the relevance of the question, and Del Rio argued it was necessary to show that
Dr. Gersh’s rate was no different in this case from other cases. The court found that issue had not been
brought up during cross-examination and excluded the evidence as irrelevant.
2. Analysis
Del Rio elicited testimony about Dr.
Gersh’s payment as an expert witness and she testified to her hourly rate on
cross-examination. No evidence suggested
that Dr. Gersh charged Del Rio more or less than her standard fee. The trial court could reasonably conclude
testimony about the hourly rate that Dr. Gersh charges in unrelated cases was
irrelevant and beyond the scope of the cross-examination. The court did not abuse its discretion by excluding
testimony about her hourly rate in other cases.
III. Sufficiency of the Evidence
Del Rio contends there is no
substantial evidence to support the jury’s findings related to accommodation or
damages. We disagree.
A. Standard of Review
Contending that the trial court
erred in denying a motion for judgment notwithstanding
the verdict is functionally equivalent to contending
there was insufficient evidence to support the jury verdict. “On appeal from the denial
of a motion for [judgment notwithstanding
the verdict], we determine whether there is any
substantial evidence, contradicted or uncontradicted, supporting the jury’s
[Citation.] [¶] On the appeal from the judgment itself, we
apply the substantial evidence test. We
must affirm the judgment if there is any ponderable, credible evidence or
reasonable inferences therefrom supporting the findings made by the jury. [Citation.]”
(Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053,
1058.)
Accommodation
Del
Rio contends the evidence showed Vasquez could not perform the essential
functions of her job even with accommodation, and therefore, Del Rio was
entitled to judgment as a matter of law.
This is incorrect.
An
employer may discharge an employee with a physical disability
when the employee, because of the physical disability, is
unable to perform the essential duties of his or her position even with
reasonable accommodations. (§ 12940, subd. (a)(1).) “[A]n employer is liable under section
12940[, subdivision] (m) for failing to accommodate an employee only if the
work environment could have been modified or adjusted in a manner that would
have enabled the employee to perform the essential functions of the job.” (Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975 (
“‘Reasonable
accommodation’ is defined in the FEHA and its
implementing regulations only by way of example. [Citations.]”
(Nadaf–Rahrov, supra, 166 Cal.App.4th at pp. 972–973.) Section 12926, subdivision (n) provides: “‘Reasonable accommodation’
may include either of the following:
[¶] (1) Making existing facilities used by employees
readily accessible to, and usable by, individuals with disabilities. [¶]
(2) Job restructuring, part-time
or modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, adjustment or modifications of
examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals with
disabilities.”
Reasonable accommodation can include
a finite leave, whether paid or unpaid, provided it is likely that the employee
will be able to perform his or her duties at the end of the leave. (Hanson v. Lucky Stores, Inc. (1999)
74 Cal.App.4th 215, 226; see Humphrey v. Mem’l Hosps. Ass’n (9th Cir. 2001) 239 F.3d 1128,
1135–1136 [under the Americans with Disabilities Act, a leave of absence for
medical treatment may be a reasonable accommodation of an employee’s
disability, and when a leave of absence would permit the employee to perform
the essential functions of the job upon his or her return to work, the employee
is otherwise qualified].) The
reasonableness of an accommodation is generally a factual question. (Soldinger v. Northwest Airlines, Inc.
(1996) 51 Cal.App.4th 345, 370.)
In this case, there was ample
evidence that temporarily restructuring Vasquez’s job duties to accommodate the
lifting restriction during her pregnancy was a reasonable accommodation. Other employees with lifting restrictions
were accommodated through light duty assignments. In Vasquez’s position as a certified nursing
assistant, she could have been assigned to watch the parking lot or fold
laundry. In fact, it was undisputed that
Vasquez could have been given a light duty assignment, because Del Rio claimed
to have offered her two weeks of light duty work. The evidence showed temporary light duty work
was available which Del Rio could have assigned Vasquez during her pregnancy
without undue hardship. After providing
this accommodation for a finite period of time, similar to providing a finite
leave of absence, it was likely that Vasquez could perform the essential
functions of her position. Substantial
evidence supports the jury’s verdict on this issue.
C. Past Economic Damages
Del Rio contends there is no
substantial evidence to support the jury’s finding that Vasquez suffered lost
earnings of $35,880.
“‘“The determination of
inevitable wide differences of opinion do not call for the intervention of
appellate courts. [Citation.] An appellate court, in reviewing the amount
of damages, must determine every conflict in the evidence
in respondent’s favor and give him the benefit of every reasonable inference. [Citation.]
An appellate court may not interfere with an award unless ‘the verdict
is so large that, at first blush, it shocks the conscience and suggests
passion, prejudice or corruption on the part of the jury.’”’ [Citation.]”
(Weller v. American Broadcasting Companies, Inc. (1991) 232
Cal.App.3d 991, 1011-1012.)
Vasquez earned $9.00 per hour at Del
Rio and worked approximately 40 hours per week, for a total of $360.00 per
week. The parties agree that
approximately 23 months, or 100 weeks, elapsed between Vasquez’s last day of
work and the date of the jury’s verdict.
There is no evidence concerning maternity leave or disability insurance
policies. Therefore, an award of past
economic damages up to $36,000 was supported by the evidence.
Del
Rio contends the jury’s award of future lost earnings of $35,880 is not
supported by substantial evidence and fails to take into account Vasquez’s duty
to mitigate her damages by finding new employment. We disagree.
The amount awarded Vasquez for future economic damages was approximately
23 months of her salary. Vasquez had no
permanent employment at the time of trial, despite dedicated efforts to find
work. At the time of trial, Vasquez had
completed orientation for a part-time seasonal position at Target, which the
jury could infer would provide her with one month of part-time employment. It took two and a half years for her to find
a job between June 2004 and November 2006.
She has limited work experience, and her only significant employer
claims that she abandoned her job. It
was a reasonable conclusion that Vasquez would be able to find permanent
employment within two years and award future economic damages accordingly.
E. Past Noneconomic Losses
Del Rio contends the jury’s award of
$75,000 for past noneconomic damages is not supported by substantial evidence
and is inconsistent with the jury’s finding that Vasquez did not suffer
“severe” emotional distress.
The trial court instructed the jury
in connection with noneconomic damages as follows: “No fixed standard exists for deciding the
amount of damages for mental suffering and emotional distress. You must use your judgment to decide a
reasonable amount based on the evidence and your common sense.”
Vasquez was entitled to recover for
mental suffering and emotional distress that she suffered as a result of Del
Rio’s discrimination. There was no
requirement that the mental suffering and emotional distress be “severe” to
recover noneconomic damages. Thus, the
jury’s finding that Vasquez did not suffer “severe” emotional distress
necessary to prove intentional infliction of emotional distress was not
internally inconsistent with its award of noneconomic damages for mental
suffering and emotional distress caused by discrimination. Vasquez testified about her emotional
distress as a result of the discrimination.
The award of past noneconomic damages approximately twice the amount of
economic damages is not shocking, considering Vasquez was a low wage earner and
her economic damages were relatively low.
We find the award of past noneconomic damages is supported by the
record.
F. Future Noneconomic Losses
Del Rio contends the jury’s award of
$50,000 for future noneconomic damages is not supported by
The trial court additionally
instructed the jury that “[t]o recover for future emotional distress and mental
suffering, the plaintiff must prove that she is reasonably certain to suffer
that harm.”
The evidence was that Vasquez ceased
to have nightmares in 2010 and her emotional distress was improving over
time. The jury could infer from the
evidence of emotional distress that Vasquez continued to suffer from emotional
distress, although it was getting better.
The jury’s award of future noneconomic damages in an amount
substantially less than the award of past noneconomic damages adequately
reflects that Vasquez’s mental suffering was improving over time. The award is not shocking and is supported by
the record.
DISPOSITION
The judgment is affirmed. Respondent Christina Vasquez is awarded her
costs on appeal.
KRIEGLER, J.
We concur:
TURNER, P. J.
MOSK, J.
further statutory references are to the Government Code unless stated
otherwise.
testified that Aguilar paged her about the doctor’s note on December 29,
2009. Vasquez confirmed the lifting
restriction, but said she could perform her other job duties, and Aguilar
allowed her to continue working. Aguilar
denies that this conversation took place.
However, the discrepancy is not material to any issue in this case.
