Ins. Co.
Filed 4/19/13 Dickinson v. Allstate Ins. Co. CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION
THREE
ERIC DICKINSON,
Plaintiff and Respondent,
v.
ALLSTATE INSURANCE COMPANY,
Defendant and Appellant.
G045033
(Consol. with G045295)
(Super. Ct. No. 30-2009-00310856 )
O P I N I O N
ERIC DICKINSON,
Plaintiff and Appellant,
v.
ALLSTATE INSURANCE COMPANY
et al.,
Defendants and Respondents.
Appeal
from the judgment and postjudgment orders of the Superior
Court of
County, Jamoa A. Moberly, Judge. Affirmed in part, reversed in part and
remanded for further proceedings.
Ballard
Spahr, Naomi Young, Lawrence J.
Gartner and John R. Carrigan, Jr., for Defendant and Appellant Allstate
Insurance Company and Defendants and Respondents Allstate Insurance Company and
Eric Jentgen.
Law Offices of Renuka V.
Jain and Renuka V. Jain for Plaintiff and Respondent and Plaintiff and
Appellant Eric Dickinson.
*
* *
INTRODUCTION
Insurance Company appeals from an order denying its
verdict in an action based on the Fair Employment and Housing Act (FEHA). Allstate’s former employee, Eric Dickinson,
sued Allstate and his immediate supervisor, Eric Jentgen, for
employment because he falsified company documents, not because of a
disability. The jury returned special
verdicts in Dickinson’s favor on
two of eight FEHA causes of action alleged in the complaint. The court denied Allstate’s subsequent motion
for judgment notwithstanding the verdict (JNOV) on these two claims.
Dickinson
cross-appeals from the trial court’s subsequent attorney fee and cost awards as
too small. He also cross-appeals from
the posttrial entry of a judgment omitting Jentgen from a defamation claim.
On the appeal, we
reverse in part and affirm in part. The
jury found in Dickinson’s favor on
two exclusively FEHA causes of action:
failure to accommodate and failure to engage in the interactive
process. An essential element of a
lawsuit under the FEHA is exhaustion of administrative
remedies. There is no evidence in
this record that Dickinson received
the necessary right-to-sue letter from the Department of Fair Employment and
Housing (DFEH). The trial court should
have granted Allstate’s motion for JNOV on this issue.
The jury also found that
Allstate did not terminate Dickinson
because of his disability. The two FEHA
causes of action on which Dickinson
prevailed were based on events that happened while he was still employed. Dickinson’s
evidence of economic damages, however, was based solely on lost wages and
benefits after termination. He presented
no evidence of economic damages stemming from failure to accommodate or a
failure to engage in the interactive process while he was employed. The court should have granted Allstate’s
motion for JNOV on the issue of economic damages.
Dickinson’s
claim that he was disabled, which Allstate challenged by motion for JNOV and on
appeal, was supported by substantial evidence.
The court correctly denied Allstate’s motion on that ground. But Dickinson
failed to present any evidence at trial of a reasonable and available
accommodation for his disability, an essential element of a cause of action for
failure to engage in the interactive process.
The motion for JNOV on this cause of action should have been granted on
this basis as well.
On the cross-appeal, we
affirm the trial court’s modification of the judgment to delete Jentgen. The court correctly interpreted an ambiguous
verdict to limit liability on Dickinson’s
cause of action for coerced self-publication to Allstate, as Dickinson’s and
Jentgen’s employer. As to the issue of
attorney fees, Dickinson cannot
recover fees under the FEHA, because judgment should be entered in Allstate’s
favor on all the FEHA claims. We return
the case to the trial court for a determination of costs based on the
applicable Code of Civil Procedure statutes.
FACTS
employed Dickinson as a field
claims adjuster, a person the insurer assigns to inspect damaged vehicles and
arrange for their repair.
name="_ftnref1" title="">[1] Before 2008, Dickinson and two other field
adjusters covered a large territory in Southern California. The work required a great deal of driving to
inspect damaged cars, either at body shops or at customers’ homes. Field adjusters were expected to process
three or four vehicles per day, usually at a different location for each
one.
Dickinson
was “grandfathered†into the Allstate workforce when Allstate bought the auto
insurance lines of CNA Insurance. At the
time of his termination in May 2009, he had worked for Allstate for 25
years.
In August 2004,
Dickinson suffered a stroke; while hospitalized for the stroke, he had a
2005. Dickinson testified that the
stroke left him with weakness on his left side, a limp in his left leg, and
slurred speech.
While Dickinson was
recuperating from his heart attack and stroke, his doctor wrote a letter to his
supervisor (not Jentgen) supporting Dickinson’s request for permission to take
some required training classes online at home, while he was on medical
leave. The letter, dated October 25,
2004, explained that Dickinson did not want to fall behind on his
training. The letter referred to
nonspecific “medical problems,†and the only accommodation mentioned was taking
the training courses at home during Dickinson’s leave. Dickinson gave this letter to his supervisor.
testified that his supervisor refused his request to take the training classes
during his leave, so he obtained another letter from his physician, dated
December 13, 2004, to support his request.
This letter explained that the medical problems were hospitalizations
during the previous August and September for stroke, renal failure, and heart
attack. The letter continued, “Any
anxiety or undue stress can be detrimental to Mr. Dickinson’s health.†Dickinson gave this letter to his supervisor.
On September 28, 2005,
nearly nine months after Dickinson had returned to work, once again covering a
large territory, his supervisor sent him an e-mail inquiring about the state of
his “ticker.†Dickinson responded with a
long e-mail explaining that he had “instant death syndrome†(similar, he said,
to sudden infant death syndrome) and that, while he was improving, he still had
to be closely monitored. His recovery
depended on “proper medication and exercise over time.†Dickinson was supposed to increase his cardio
exercise, and he had a follow-up appointment in November. Dickinson’s supervisor e-mailed back,
“Wow. So tell me, has your Dr. placed
any restrictions on your work or driving?
Also, has the Dr. said anything about a disability?â€
In response to this
inquiry, Dickinson asked his physician to write another letter explaining his
condition, which he gave to the supervisor.
This letter, dated November 2, 2005, and addressed “To Whom It May
Concern,†again mentioned only an accommodation with respect to his training
classes, stating that “[i]t is possible†that taking the training classes in
addition to his normal workload would be too stressful for him in his current
state of health.
title="">[2] Dickinson eventually fulfilled his training
requirements in 2005 or 2006 by spending a week in Chicago taking classes, a
week during which he did no field work.
In the spring of 2008,
because of a slowdown in business, Allstate sent one of the three Southern
California field adjusters to another territory and divided most of the
remaining territory between the other two, one of whom was Dickinson. Accordingly he had to spend more time on the
road between inspections, and he felt more rushed to complete his work,
resulting in anxiety attacks. He also
testified the increased driving caused numbness in his left leg and arm. He told Jentgen about these problems and
asked to have his territory reduced. It
was not.
Normally when an
Allstate adjuster processed a damage claim, he or she called up the claim file
on a laptop. A partially filled-out form
would appear on the screen; the adjuster would then complete the form after
inspecting the vehicle. When the
additional information had been entered, the adjuster uploaded the form to the
Allstate system, where it could be viewed by supervisors and processed
further.
In Dickinson’s case,
however, he testified that because of a “glitch†in his laptop, which began
sometime in October or November 2008, a completely blank form came up when he
opened a file. He had to fill in the
information that would normally already be visible. He testified this glitch did not bother him –
he was able to manage it, although it took extra time to fill in the missing
information – and he never tried to get his laptop fixed, for fear it would be
taken away from him for some days and he would have to handwrite all his claim
forms during that time.
April 2008, Allstate instituted the Estimate Requirement Index (ERI) survey,
designed to get customer feedback on the field claims adjusters. The surveyors (employed by a separate vendor)
telephoned customers who had made claims and asked a series of questions about
their experience with Allstate adjusters.
The surveyors used the customer telephone numbers retrieved from the
filled-out claim forms.
In early 2009, Jentgen,
who had been Dickinson’s immediate supervisor since April 2007, noticed he had
received only one ERI survey result for Dickinson in the first eight weeks of
the year. Upon further investigation,
prompted by his own supervisor, Jentgen discovered that in 18 of 20 randomly
selected claims Dickinson had handled in February 2009, the customer’s contact
telephone number Dickinson had filled in was off by one number – generally the
last. This meant, of course, that when
the people conducting the survey tried to telephone customers, they would get
wrong numbers. Jentgen passed this
information on to his supervisor, who forwarded it to Allstate’s corporate
security and human resources departments.
Jentgen also communicated directly with corporate security regarding his
findings. Jentgen’s supervisor called
the head of Allstate to alert him to the problem.
Dickinson met with a
representative of the Allstate corporate security department at the end of
March 2009 to tell his side of the story.
He denied purposely entering false telephone numbers and asserted he was
not even aware the phone numbers had any significance with respect to the
survey. He also asserted that, in light
of his consistently high marks in customer satisfaction over the years, he
would have no reason to want to short-circuit any contact between Allstate and
the people whose claims he had handled.
corporate security conducted its investigation, the results were presented to a
senior human resources manager, an assistant vice-president for employee
relations, and the head of Allstate, Allan Robinson. Robinson decided, with the concurrence of the
human resources manager and the assistant vice-president, to fire Dickinson
immediately for falsifying corporate records.
Robinson did not know Dickinson and was unaware of any claimed
disability. Dickinson’s employment was
terminated on May 12, 2009, at a meeting attended by Jentgen and the local
human resources representative.
Dickinson sued Allstate
and Jentgen in October 2009 for disability discrimination, wrongful termination
in violation of public policy, retaliation, failure to accommodate, failure to
engage in the interactive process, age discrimination, gender discrimination,
wrongful harassment, breach of implied contract, breach of the implied covenant
of good faith, intentional infliction of emotional distress, and
defamation. He alleged he had filed a
claim with the DFEH and received a right-to-sue letter. He attached three different claim forms to
the complaint as exhibits.
Dickinson’s causes of
action for age discrimination, gender
discrimination, breach of implied contract, and breach of the implied covenant
all fell to Allstate’s motion for summary adjudication. The remaining claims were tried to a jury in
October and November 2010.
Dickinson’s damages
expert, Susan Bleeker, testified regarding the value of Dickinson’s lost wages
and benefits from the time of his termination to the time of trial (past
damages) and from trial to age 55 and to age 65 (future damages). She calculated the past lost wages as
$116,821, past lost health benefits as $5,484 and the future lost wages to age
55 as $207,017.
10 days of testimony, the jury returned a special verdict. It found in Allstate’s favor on the causes of
action for emotional distress, defamation, harassment, and all those based on
remaining two FEHA causes of action:
failure to accommodate and failure to engage in the interactive
process. On these two causes of action,
the jury awarded Dickinson $122,305 in lost earnings for past economic loss and
$207,017 in lost earnings for future economic loss.
distress damages.
The jury also found in
Dickinson’s favor on a cause of action for “coerced self-publication,†based on
evidence that Dickinson had to tell potential employers he had been fired for
falsifying company documents.
name="_ftnref6" title="">[6] The jury awarded Dickinson $1,000 for past
damages and $1,000 for future damages on this claim. After a subsequent hearing on the form of the
judgment, the court entered the judgment only against Allstate on that claim.
The trial court denied
Allstate’s motion for JNOV on the two FEHA causes of action on which Dickinson
prevailed. Pursuant to a posttrial
motion, the court awarded Dickinson’s counsel $567,220.57 in attorney fees. It allowed $84,864.47 in costs.
Allstate appealed from
the denial of its motion for JNOV on the two FEHA causes decided adversely to
it and from the subsequent award of attorney fees and costs. Dickinson cross-appealed on the grounds that
his counsel did not get a large enough attorney fee award and that he should
have received more money for costs. He
also appealed from the elimination of Jentgen from the judgment on the
self-publication claim.
DISCUSSION
Appeal
identified several issues in its motion for JNOV for our review. Allstate argued its motion should have been
granted because Dickinson did not show:
(1) he had exhausted his remedies before bringing a civil suit;
accommodation for his disability; (3) there were damages attributable to the
FEHA claims upon which he prevailed; and (4) he was disabled under the
FEHA.
trial court’s power to grant a motion for judgment notwithstanding the verdict
is the same as its power to grant a directed verdict. [Citation.]
‘A motion for judgment notwithstanding the verdict may be granted only
if it appears from the evidence, viewed in the light most favorable to the
party securing the verdict, that there is no substantial evidence in
support.’ [Citations.] 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
verdict. [Citations.] If there is, we must affirm the denial of the
motion. [Citations.] If the appeal challenging the denial of the
motion for judgment notwithstanding the verdict raises purely legal questions,
however, our review is de novo.
[Citation.]†(
Television (2008) 162 Cal.App.4th 1107, 1138; see also Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199
Cal.App.4th 1336, 1345.)
With respect to the FEHA
causes of action that were tried, the jury determined, in effect, that Allstate
did not terminate Dickinson because of his disability or because of his request
for accommodation. Allstate prevailed on
all of the causes of action relating to termination, as well as on the
harassment claims. The jury found Allstate liable under the FEHA only for two
causes of action based on what happened to Dickinson while he was still working
– failure to engage in the interactive process and failure to accommodate.
Administrative Remedies
Among the employment
practices prohibited by the FEHA are failing to make reasonable accommodation
for an employee’s known physical disability and failing to engage in an
interactive process to determine a reasonable accommodation. (Gov. Code, § 12940, subds. (m)-(n).) An employee aggrieved by an employer’s action
that violates the FEHA must file a written charge with the DFEH within one year
of the alleged unlawful practice. (Gov.
Code, § 12960, subds. (b), (d).) The
charge consists of a verified complaint, in writing, stating the particulars of
the unlawful practice and including the names and addresses of those persons
who allegedly committed it. (Gov. Code,
§ 12960, subd. (b).) The DFEH can then
either pursue the matter itself (Gov. Code, § 12930, subd. (h)) or notify the
complainant – at the latest within 150 days of filing the complaint – that the
department will not be taking any further steps. (Gov. Code § 12965, subd. (b).) If it takes this latter course, the
department must at the same time inform the employee of his or her right to
request a right-to-sue notice. (
notice must be filed within one year of its date. (Ibid.)
“[T]he rule is that
where an administrative remedy is provided by statute, relief must be sought
from the administrative body and this remedy exhausted before the courts will
act. . . . [¶] The rule . . . is not a matter of judicial
discretion, but is a fundamental rule of procedure laid down by courts of last
resort, followed under the doctrine of stare
decisis, and binding on all courts.†(Abelleira
v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293.)
There is no right-to-sue letter in the record
before us, and Dickinson does not dispute that no such letter was ever
presented at trial.
title="">[8] In fact, he steadfastly resisted being required
to provide one. His DFEH claim forms
were not trial exhibits. There was also
no trial testimony regarding either the claim forms or the right-to-sue letter.
The issue before us is
which party bears the burden on exhaustion of administrative remedies. Is it part of the plaintiff’s case-in-chief
and therefore Dickinson’s burden to show he received a right-to-sue
letter? Or is the lack of the letter an
affirmative defense, “new matter,†with the burden on Allstate?
We conclude that the
introduction of this evidence is the plaintiff’s responsibility, as part of his
case-in-chief. “Except as otherwise
provided by law, a party has the burden of proof as to each fact the existence
or nonexistence of which is essential to the claim for relief or defense that
he is asserting.†(Evid. Code, §
500.) “Under the FEHA, the employee must
exhaust the administrative remedy provided by the statute by filing a complaint
with the [DFEH] and must obtain from the Department a notice of right to sue in
order to be entitled to file a civil action in court based on violations of the
FEHA. [Citations.] The timely filing of an administrative
complaint is a prerequisite to the bringing of a civil action for damages under
the FEHA. [Citations.]†(Romano
v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492; see also
29 Cal.App.4th 1718, 1724.) “[I]n the
context of the FEHA, exhaustion of the administrative remedy is a jurisdictional
prerequisite to resort to the courts.†(
(1995) 36 Cal.App.4th 1607, 1613.) As
these authorities make clear, exhaustion of administrative remedies is a fact
essential to a private claim for relief under the FEHA. (Cf. Westinghouse
Elect. Corp. v. County of Los Angeles (1974) 42 Cal.App.3d 32, 37
[exhaustion of remedies part of plaintiff taxpayer’s case-in-chief in
assessment action].) It follows that the
burden of proof lies with Dickinson.
Exhaustion of
administrative remedies cannot be an affirmative defense – as Dickinson
repeatedly told the trial court – because exhaustion is not “new matter,†even
if the defendant includes it in an answer.
(See Code Civ. Proc., § 431.30, subd. (b)(2).) “The mere fact that an answer contains an
affirmative allegation does not mean per se that it is setting up ‘new
matter.’ An averment in the answer
contrary to what is alleged in the complaint is equivalent to a denial. [Citation.]
The basic consideration is whether the matters of defense are responsive
to the essential allegations of the complaint, i.e., whether they are
contradicting elements of plaintiff’s cause of action or whether they tender a
new issue, in which case the burden of proof is upon the defendant as to the
allegation constituting such new matter.
[Citation.] . . . ‘Whether a matter is new or not, must be determined by
the matter itself, and not by the form in which is it pleaded – the test being
whether it operates as a traverse or by way of confession and avoidance. A plea tendering no new issue, but
controverting the original cause of action, is a mere traverse, and as nothing
new is involved in it, to call it new matter would be a misapplication of terms.
. . .’ [Citation] . . . [¶] . . . ‘If
the answer, either directly or by necessary implication, admits the truth of
all the essential allegations of the complaint which show a cause of action,
but sets forth facts from which it results that, notwithstanding the truth of
the allegations of the complaint, no cause of action existed in the plaintiff
at the time the action was brought, those facts are new matter. But if those facts only show that some
essential allegation of the complaint is not true, then such facts are not new
matter, but only a traverse.’ [Citation.]â€
(Cahill Bros., Inc. v. Clementina
Co. (1962) 208 Cal.App.2d 367, 385-386.)
Far from being “new
matter†– placing the burden of proof on Allstate – exhaustion of
administrative remedies is an “essential allegation†of a complaint based on
the FEHA. The absence of allegations
that a plaintiff-employee exhausted administrative remedies is grounds for
demurrer. (Campbell v. Regents of University of California (2005) 35 Cal.4th
311, 333 [university employee failed to exhaust administrative remedies;
demurrer sustained without leave to amend]; Roman
v. County of Los Angeles (2000) 85 Cal.App.4th 316, 325 [analogous federal
law]; Myers v. Mobil Oil Corp. (1985)
172 Cal.App.3d 1059, 1061, 1063 [motion for judgment on the pleadings];
(1982) 136 Cal.App.3d 116, 122-124 [failure to obtain administrative writ
review; demurrer sustained]; cf. Farmers
Ins. Exchange v. Superior Court (1992) 2 Cal.4th 377, 382 [failure to
exhaust administrative remedies available under the Insurance Code];
122 Cal.App.4th 659, 671 [inmate failed to exhaust prison appeal process;
demurrer sustained without leave to amend].)
Some courts have
regarded exhaustion of administrative remedies as jurisdictional in the fullest
sense, that is, reviewable no matter when it was first raised. (See, e.g., Sampsell v. Superior Court (1948) 32 Cal.2d 763, 773 [issue of
subject matter jurisdiction cannot be waived]; People v. Coit Ranch, Inc. (1962) 204 Cal.App.2d 52, 56-57 [issue
raised for first time after trial but before judgment]; Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959,
963 [issue raised for first time in motion for new trial]; see also
California, supra, 35 Cal.4th at p. 322, fn. 2.) More recently, however, courts have been
unwilling to consider exhaustion sacrosanct to that degree, concerned that “it
would be grossly unfair to allow a defendant to ignore this potential procedural
defense at a time when facts and memories were fresh and put a plaintiff to the
time and expense of a full trial, knowing it could assert the failure to
exhaust administrative remedies if it received an adverse jury verdict.†(Green
v. City of Oceanside (1987) 194 Cal.App.3d 212, 222; see
Cal.App.4th 121, 134-135; Keiffer v.
Bechtel Corp. (1998) 65 Cal.App.4th 893, 896-899.) These courts have held that the defendant may
forfeit the issue if it is not raised in a timely fashion.
We need not address this
issue. There is no question in this case
of Allstate’s lying in wait to raise failure to exhaust remedies and thus
forfeiting its right to a ruling on this defect. Dickinson alleged in his complaint that he had
received a right-to-sue letter, so Allstate could not demur on that
ground. Allstate raised the issue at
trial at the earliest practicable moment, when it sought a directed verdict
after Dickinson rested. Dickinson could
have asked to reopen his case to present this evidence. (See Alpert
v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1337 [denial
of request to reopen accompanied by offer of proof reversible error]; see also
Cal.App.4th 637, 641 [employee allowed to reopen case to prove excuse for
failure to exhaust remedies].) Instead,
he simply asserted it was Allstate’s burden to prove he had
discussion of jury instructions, and once again Dickinson asserted this was an
affirmative defense. Allstate raised the
issue yet again in its motion for JNOV, which the court also denied. Allstate has not forfeited its right to raise
this issue.
At trial, it was
Dickinson’s burden to show either that he complied with the statute or that his
noncompliance was excused for some reason.
(See Grant v. Comp USA, Inc.,
supra, 109 Cal.App.4th at p. 650 [plaintiff’s lack of right-to-sue letter
excused after DFEH failed to issue letter within one year of filing complaint
as required by Government Code section 12965, subdivision (b)];
(2007) 154 Cal.App.4th 940, 945, 947 [DFEH misled plaintiff regarding
timeliness of filing]; see also Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2012)
¶ 16:253, p. 16-37 (rev. #1, 2012) [“[P]laintiffs
bear the burden of pleading and proving
timely filing of a sufficient complaint with the DFEH and obtaining a
right-to-sue letter.â€]) Dickinson failed
to present any evidence at all on this issue, despite being alerted to it
several times during trial.
name="_ftnref11" title="">[11] In fact, Dickinson brought a motion in limine
to exclude any evidence regarding his administrative complaint with the DFEH or
a right-to-sue letter.
name="_ftnref12" title="">[12] Asserting now that Allstate had the burden of
proving he did not exhaust his administrative remedies places him in the odd
position of recognizing that he has to plead exhaustion, but denying he has to
prove it. That position does not hold
up. Allstate’s motion for JNOV should
have been granted on this issue. (
99 Cal.App.4th 563, 575 [motion for JNOV properly granted on one issue].)
B. Failing to Engage in
Interactive Process
Government
Code section 12940, subdivision (n), requires an employer to “engage in a
timely, good faith, interactive process with the employee . . . to determine
effective reasonable accommodations, if any, in response to a request for
reasonable accommodation by an employee . . . with a known physical or mental
disability or known medical condition.â€
This process need not be a formal one.
Its purpose is to identify a reasonable accommodation that will enable
an employee to perform effectively. (
Cal.App.4th 1185, 1195.) Both employer
and employee are responsible for participating in the process. (Jensen
v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 266.)
“To prevail on a claim
under [Government Code] section 12940, 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. An employee cannot necessarily
be expected to identify and request all possible accommodations during the
interactive process itself because ‘“‘[e]mployees do not have at their disposal
the extensive information concerning possible alternative positions or possible
accommodations which employers have . . .’â€â€˜ [Citation.] However, . . . once the parties have engaged
in the litigation process, to prevail, the employee must be able to identify an
available accommodation the interactive process should have produced.†(Scotch
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018 (
Dickinson failed to
present any evidence of an accommodation that was both available and
reasonable.
title="">[13] Having failed to show that an interactive
process would have led to a reasonable accommodation, Dickinson failed to show
any damages from the alleged failure. As
we stated in Scotch, supra, “How was
[the employee] damaged by any failure by [the employer] to engage in the
interactive process in good faith? The
FEHA has a remedial rather than punitive purpose. [Citations.]
Unless, after litigation and full discovery, [the employee] identifies a
reasonable accommodation that was objectively available during the interactive
process he has suffered no remedial injury from any violation of [Government
Code] section 12940, subdivision (n).†(
1019.)
Dickinson argued in
opposition that it was Allstate’s initial burden to show that a requested
accommodation was “unreasonable.†This
argument entirely ignores the rule articulated in Scotch. Once Dickinson
presented evidence of a reasonable and available accommodation, the burden
would have shifted to Allstate to show unreasonableness. Because Dickinson never made the initial
showing, however, the burden never shifted to Allstate.
Dickinson never
presented any evidence of an objectively available accommodation for his
reduced, but he presented no evidence that this accommodation was either
reasonable or available. He therefore
failed to present the evidence necessary to prevail on a cause of action for
failure to engage in the interactive process, and Allstate’s motion for JNOV on
this claim should have been granted.
C. Economic Damages
The jury was instructed,
per CACI Nos. 3902, 3903, and 3903C,
regarding economic damages as follows:
“The damages claimed by plaintiff Eric Dickinson for the harm caused by
Allstate or Eric Jentgen fall into two categories called economic damages and
non-economic damages. You will be asked
on the verdict form to state the two categories of damages separately. [¶]
The following are the specific items of economic damages claimed by
plaintiff Eric Dickinson. [¶] Past and future lost earnings. [¶]
To recover for past lost
earnings, plaintiff Eric Dickinson must prove the amount of wages that he has
lost to date. [¶] To recover damages for future lost earnings,
plaintiff Eric Dickinson must prove the amount of wages he will be reasonably
certain to lose in the future as a result of the injury.†The jury awarded Dickinson $122,305 for past
economic damages and $207,017 for future economic damages. It made a separate award of $10,000 for
noneconomic damages, presumably for emotional distress.
failed to present any evidence of economic damages, that is, “wages . . . he .
. . lost to date [of trial],†or “wages he will be reasonably certain to lose
in the future,†attributable either to a failure to accommodate his disability
or to a failure to engage in the interactive process, the only two FEHA claims
on which the jury found in his favor. As
stated above, damages for failing to engage in the interactive process must be
based on the employee’s identification of an available and reasonable
accommodation. Likewise, failing to
accommodate Dickinson’s disability while he was working did not result in lost
wages or benefits, the only type of economic damages as to which Dickinson
presented evidence and as to which the jury was instructed. (Cf. A.M.
v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 462 [plaintiff who was not
terminated awarded $12,000 for past lost wages for failing to accommodate;
evidence of missed work days owing to injury].)
The evidence of
Dickinson’s economic damages consisted solely of damages for lost wages and
benefits, past and future, after termination.
But Dickinson never lost any wages or benefits. He never took a sick day. He was paid up to the time of termination,
and he was not wrongfully terminated. He
was therefore not entitled to these types of economic damages. The court should have granted Allstate’s
motion for JNOV on this issue. (Cf.
Cal.App.4th 229, 237 [failure to produce evidence of property’s value at trial
grounds for granting motion for JNOV for failure to prove essential element].)
Dickinson argued
Allstate waived its objections to this issue by failing to move for a new trial
on excessive damages. Dickinson
misinterprets Allstate’s argument.
Allstate was not asserting the damages were excessive, as in too much;
it was asserting they were awarded when they should not have been. This issue was properly before the court on a
motion for JNOV.
Dickinson also argued
Allstate waived this objection by consenting to the special verdict. This argument too is without merit. At the time the special verdict was prepared
and presented to the jury, neither Allstate nor Dickinson could have known what
the outcome would be. If the jury had
found in Dickinson’s favor on one or more of the wrongful termination claims,
the jury could have appropriately awarded economic damages based on lost wages
and benefits, and the special verdict allowed for just such an award. As it turned out, however, the jury found in
Allstate’s favor on the termination claims, so he had no posttermination lost
wages and benefits.
If Dickinson wanted
economic damages for all of his claims – even those that did not involve
termination – it was his task to give the jury supporting evidence. No evidence supported an award of economic
damages for events taking place while he was employed. The court should have granted Allstate’s
motion for JNOV on this issue.
Allstate argued here and
in its motion for JNOV that the evidence did not support a finding of
disability under the FEHA. In light of
our resolution of other issues, we need not address this one.
Cross-Appeal
cross-appeal encompasses two main issues.
First, he appeals from the judgment entered on the cause of action for
self-publication, on which he prevailed.
The court entered judgment against Allstate alone. Dickinson asserts that judgment should have
been entered against Jentgen personally as well. The second issue is attorney fees and
costs. Dickinson asserts that both the
attorney fee and the cost awards should have been higher. We address each in turn.
A. Judgment on Self-Publication Cause of
Action
special verdict included two kinds of defamation claims: libel, based on an e-mail sent by Jentgen to
other field adjusters, and self-publication, based on Dickinson’s “coercedâ€
explanation to potential employers that he had falsified company
documents. The verdict form for the
libel claim asked, “Did Allstate and Eric Jentgen make the following statement
to persons other than Plaintiff Eric Dickinson?†The verdict form for the self-publication
claim asked, “Were Allstate and/or Jentgen responsible for Plaintiff Eric
Dickinson’s coerced self-publication to potential future employers?â€
The jury returned
findings in Allstate’s favor on the libel claim and a finding in favor of
Dickinson on the self-publication claim, awarding Dickinson $2,000 on the
latter claim.
title="">[15] At a posttrial hearing, Allstate asked to
have the judgment entered only against Allstate on the ground that Allstate,
not Jentgen personally, was responsible for firing Dickinson, and so only
Allstate, not Jentgen personally, could be responsible for self-publication
regarding the reason Dickinson was fired.
The court agreed and entered judgment accordingly. Dickinson appealed this ruling, arguing that
Jentgen should be personally liable, along with Allstate, for the $2,000 in
damages Dickinson obtained on the self-publication claim.
“On appeal, a judgment
of the trial court is presumed to be correct.
[Citation.] Accordingly, if a
judgment is correct on any theory, the appellate court will affirm it
regardless of the trial court’s reasoning.
[Citations.] All intendments and
presumptions are made to support the judgment on matters as to which the record
is silent. [Citation.]†(Cahill
v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)
The ‘and/or†formula in
the special verdict on self-publication rendered the verdict ambiguous. Did the jury mean only Allstate, only
Jentgen, or both of them were responsible for the self-publication? “‘If the verdict is ambiguous the party
adversely affected should request a more formal and certain verdict. Then, if the trial judge has any doubts on
the subject, he may send the jury out, under proper instructions, to correct
the informal or insufficient verdict.’
[Citations.] But where no
objection is made before the jury is discharged, it falls to ‘the trial judge
to interpret the verdict from its language considered in connection with the
pleadings, evidence and instructions.’
[Citations] Where the trial judge
does not interpret the verdict or interprets it erroneously, an appellate court
will interpret the verdict if it is possible to give a correct
interpretation.†(Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d
452, 456-457.) “Waiver is not found
where the record indicates that the failure to object was not the result of a
desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ [Citations.]â€
(Id. at p. 456, fn. 2.)
novo, as a matter of law. (
(2008) 160 Cal.App.4th 1083, 1092.)
An original defamer is
liable for republication of a libelous statement – even republication by the
person defamed – if the repetition of the false statement was reasonably to be
expected. (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 281.) A plaintiff with a “strong compulsion†to
disclose defamatory statements can recover from the defendant, although
ordinarily a defendant is not liable if the plaintiff voluntarily repeats the
statements to others. (
110 Cal.App.3d 787, 796.) The
circumstances creating the strong compulsion must be known to the original
defamer at the time he communicates it to the person defamed. (Id.
at pp. 797-798.) One such circumstance
might be when “a job seeker must tell a prospective employer what is in his
personnel file in order to explain away a negative job reference.†(Live
Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1287.)
Dickinson’s
self-publication claim against Jentgen seems to rest on Jentgen’s report to his
superiors, which set in motion the investigation about the altered phone numbers,
and on the memorandum he wrote to his immediate boss recommending termination
of Dickinson’s employment, in part for falsifying company records. Dickinson presented no evidence that, at
either of these times, Jentgen could have known what the outcome of his report
or the memorandum would be. Jentgen was
certainly in no position to fire Dickinson himself, and, so far as he could
have known at the time, Dickinson might have been able to explain away the
discrepancies to the higher-ups, or he might have been let off with something
short of termination. Although Jentgen
himself was firmly persuaded of Dickinson’s guilt and thought he should be
fired, no evidence presented at trial suggested Jentgen had any influence over
the people who ultimately decided to terminate Dickinson’s employment. The ultimate outcome – the circumstances that
would create the strong compulsion to publish – was in other hands than his.
In addition, no evidence
suggested that Dickinson had any “negative job reference†attributable to
Jentgen to explain away.
name="_ftnref17" title="">[17] Without this evidence, Dickinson had no claim
against Jentgen for coerced self-publication.
(See Davis v. Consolidated
Freightways (1994) 29 Cal.App.4th 354, 373; see also Anthoine v. North Central Counties Consortium (E.D.Cal. 2008) 571
F.Supp.2d 1173, 1194 [applying California law], reversed in part on other
grounds in Anthoine v. North Central
Counties Consortium (9th Cir. 2010) 605 F.3d 740.)
The court did not err in
entering judgment against Allstate alone on the self-publication cause of
action.
Code section 12965, subdivision (b), permits a prevailing party in an action
filed after the issuance of a right-to-sue notice to recover reasonable
attorney fees. In light of Dickinson’s
failure to prevail on any of his FEHA claims, an award of attorney fees
pursuant to this section must be reversed.
The trial court must
also recalculate the cost award, which is now governed by Code of Civil
Procedure sections 1032 and 1033.5. For
example, these sections do not permit an award for expert witness fees, as
would be allowed under the FEHA. (See
Gov. Code, § 12965, subd. (b).)
DISPOSITION
The order denying the motion for judgment
notwithstanding the verdict on the two FEHA causes of action is reversed, and
the trial court is directed to enter judgment in favor of defendants on these
two causes of action. The judgment in
Dickinson’s favor and against Allstate alone on the self-publication cause of
action is affirmed. The posttrial order
awarding attorney fees to Dickinson is reversed. The trial court is directed to recalculate
the award of costs pursuant to Civil Procedure Code sections 1032 and
1033. Allstate is to recover its
BEDSWORTH,
ACTING P. J.
I CONCUR:
ARONSON, J.
MOORE, J.,
Dissenting.
I
respectfully dissent. Whether or not
exhausting administrative remedies in a case brought under the Fair Employment
and Housing Act (FEHA) is a jurisdictional requirement or merely a precondition
to bringing a civil action has been the subject of much debate. I agree with the cases stating the exhaustion
requirement is merely a precondition to bringing civil suit on an employee’s
FEHA claims. (Grant v. Comp USA, Inc. (2003) 109 Cal.App.4th 637, 644.)
It seems
obvious Dickinson’s counsel did not appreciate plaintiff’s burden regarding the
exhaustion of administrative remedies issue.
Not only were there many opportunities before and during the trial for
introduction of a right-to-sue letter, another opportunity was presented during
the motion for judgment notwithstanding the verdict. When asked about the absence of a
right-to-sue letter at oral argument on appeal, counsel responded, “That’s not
one of our main points.â€
It appears
to me that, despite Dickinson’s not introducing a right-to-sue letter,
sufficient evidence that he exhausted his administrative remedies was before
the court. Dickinson’s FEHA complaint
was attached his to superior court complaint, and it was attached to one of
Allstate’s pretrial motions as well. His FEHA complaint states: “I wish to pursue this matter in court.†It also states, in print on the FEHA form: “I understand it is the Department of Fair
Employment and Housing’s policy to not process or reopen a complaint once the
complaint has been closed on the basis of ‘Complainant Elected Court
Action.’â€
Thus,
despite the absence of a right-to-sue letter in the record, there does exist
sufficient evidence to demonstrate plaintiff was not pursuing his
administrative rights at the same time he was prosecuting his claim in superior
court. After all, Dickinson informed the
Department of Fair Employment and Housing (DFEH) of his intent to pursue the
matter in court, and the DFEH informed him it would not even process an
administrative action when a complainant elected court action.
Regardless
of the presence of actual evidence in the record that Dickinson exhausted his
administrative remedies, this court may also presume that a right-to-sue letter
was issued. The DFEH has a ministerial
duty to issue a right-to-sue notice one year after the employee files his
administrative complaint. (Gov. Code, §
12965, subd. (b).) Dickinson’s FEHA
complaint is dated August 13, 2009, and his trial in superior court did not
commence until more than a year later, on October 28, 2010.
To reverse
a jury verdict under these circumstances is to place form over substance. While it would be my preference to find the
record sufficient and affirm, at the very least, this matter should be remanded
to the superior court to give plaintiff yet another opportunity to request
introduction of his right-to-sue letter into evidence.
Regarding
another issue, the majority states Dickinson never presented any evidence of an
objectively available accommodation for his disability. It also states he failed to present any
evidence of economic damages attributable either to a failure to accommodate
his disability or to a failure to engage in the interactive process. (Maj. opn., ante, pp. 17-18.)
But the
record is replete with evidence that undue stress was detrimental to his
health. The letter from Dr. Hunter is a
prime example. Dickinson testified he
asked his supervisor for a reduction in territory and workload because he was
driving more and accomplishing less due to his physical condition or panic
attacks. He also testified his territory
expanded and his new assignments increased due to staffing issues at Allstate.
I do not
find the verdict to be inconsistent. The
jury could have reasonably concluded Allstate fired him for performance
difficulties, while at the same time concluding both that Dickinson identified
being placed in less stressful situations as a
reasonable accommodation, and that, had Allstate placed him in fewer
situations involving undue stress, he could have met his performance
requirements.
Nonetheless,
there is a principled position for a finding the verdict is inconsistent. One example of a possible inconsistency is on
the wrongful discharge page of the special verdict wherein the jury checked
“No†to the question: “Were acts
prohibited under the California Fair Employment and Housing Act a motivating
reason for Allstate’s decision to discharge Plaintiff Eric Dickinson?†At the same time, the jury awarded damages
for past and future lost earnings.
“A special
verdict is inconsistent if there is no possibility of reconciling its findings
with each other. [Citation.]†(Singh
v. Southland Stone, U.S.A., Inc. (2010)
186 Cal.App.4th 338, 357.) As an
appellate court, we are not permitted to choose between inconsistent
answers. “The proper remedy for an
inconsistent special verdict is a new trial.
[Citation.]†(
Accordingly,
it is my opinion the judgment should be affirmed. An acceptable alternative is that the matter
should be remanded for a new trial.
MOORE,
J.
name="_ftn1" title=""> [1] Dickinson actually worked for
Encompass Insurance, a subsidiary or brand name of Allstate. The insurance company defendant was usually
referred to during trial as “Allstate,†and we will continue that practice in
this opinion.
name="_ftn2" title=""> [2] The letter once again referred
generally to “multiple active health issues.â€
