Green v. State

• Decision Date: 24 August 2005
• Docket Number: No. E034568.,E034568.
• Citation: 132 Cal.App.4th 97,33 Cal.Rptr.3d 254
• Court: California Court of Appeals Court of Appeals
• Parties: Dwight D. GREEN, Plaintiff and Appellant, v. STATE of California, Defendant and Appellant.

33 Cal.Rptr.3d 254

132 Cal.App.4th 97

Dwight D. GREEN, Plaintiff and Appellant, v. STATE of California, Defendant and Appellant.

No. E034568.

Court of Appeal, Fourth District, Division 2.

August 24, 2005.

Certified for Partial Publication.^*

Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, and Michelle Logan-Stern, Deputy Attorney General, for Defendant and Appellant.

Pine & Pine, Norman Pine, Beverly Tillett Pine; Law Offices of David H. Greenberg and David H. Greenberg, San Diego, for Plaintiff and Appellant.

OPINION

GAUT, J.

1. Introduction

Plaintiff Dwight D. Green worked for defendant, the State of California, as a stationary engineer at a correctional facility for over 12 years before he was placed on disability retirement. The jury found that, in failing to provide plaintiff with reasonable accommodation for his Hepatitis C, defendant discriminated against plaintiff in violation of the Fair Employment and Housing Act (the FEHA). (Gov. Code, § 12900 et seq.)¹ The jury awarded plaintiff $597,088 in economic damages and $2,000,000 in noneconomic damages, which the court reduced to $1,800,000.

In challenging the jury's verdict, defendant raises the following claims: the jury's verdict was not supported by the evidence; the decision of the workers' compensation judge barred plaintiff's disability discrimination claim; the court abused its discretion in excluding evidence of the Workers' Compensation Appeals Board (the Appeals Board) proceeding and the testimony of Dr. Alvin Markovitz, the qualified medical examiner for the administrative proceeding; the court erred in instructing the jury on the elements of the prima facie case and the defenses; and the award of $2,000,000 in noneconomic damages was excessive. In his cross-appeal, plaintiff claims the trial court exceeded its authority in reducing the noneconomic damages and abused its discretion in denying the requested amount of attorneys fees.

Defendant's challenges to the sufficiency of the evidence and the instructions require that we decide whether the trial court correctly placed upon defendant the burden of establishing that plaintiff was incapable of performing his essential functions with reasonable accommodations, as required under section 12940, subdivision (a). We conclude that it was defendant's burden to prove plaintiff's incapacity as an affirmative defense and not plaintiff's burden to prove his capacity to perform as part of his prima facie case. Based on this conclusion, there was substantial evidence to support the jury's finding of disability discrimination.

As to defendant's evidentiary claims, we conclude that the doctrine of collateral estoppel did not apply because the workers' compensation proceeding involved a disability discrimination claim under Labor Code section 132a, instead of a discrimination claim under the FEHA. The court, therefore, properly excluded evidence of the administrative proceeding and Dr. Markovitz's testimony. For the reasons provided below, we reject defendant's remaining claims.

In regards to plaintiff's cross-appeal, we agree that the trial court had no sua sponte authority to grant the motion for new trial on excessive damages. We disagree, however, with plaintiff's contention that the court abused its discretion in refusing to award $498,300 in attorney fees.

We affirm the judgment, but reverse the trial court's ruling on the motion for new trial. The trial court must reinstate the judgment following the jury's verdict.

2. Factual and Procedural History

Plaintiff began working for the State of California in 1974 and specifically for the California Institute of Men (the Institute) as a stationary engineer in 1987.² A stationary engineer's duties included the maintenance and repair of boilers, air conditioners, refrigerators, and other equipment and mechanical systems. In performing these duties, the stationary engineer supervised and worked with a crew of inmates. The stationary engineer also conducted searches and assisted the guards in preventing injury and escape.

Plaintiff first discovered that he had Hepatitis C in 1990. Plaintiff presumably contracted the disease while working on the sewer pipes at the Institute. Despite his condition, plaintiff continued performing his duties as a stationary engineer.

Throughout his employment at the Institute, there were no prior complaints concerning plaintiff's work performance. Instead, plaintiff received letters of commendation. George Woods, who supervised plaintiff from 1994 to 1997, found plaintiff to be one of his best stationary engineers, capable of performing all of his required job duties.

In 1997, plaintiff's physician, Dr. James Wang, began to treat plaintiff with a drug called Interferon or Infergen, which is a specific type of Interferon. A single course of treatment required injections three times a week for a one-year period. As a result of the injections, plaintiff began to experience certain side effects, including fatigue, aches, and stress or agitation. Because of these side effects, Dr. Wang wrote a letter to defendant requesting that plaintiff be placed on light duty until about June of 1997.

Based on Dr. Wang's letter, Woods accommodated plaintiff by allowing him to arrive late on the days that he received the Infergen injections. Woods at times assigned plaintiff to positions that did not require heavy labor, including the general shop. Even under normal circumstances, stationary engineers often used inmates to do most of the heavy labor. Woods observed that plaintiff was able to continue performing his duties.

In 1999, plaintiff injured his back at work on two separate occasions. After the first injury in June, plaintiff was assigned to light duty, as recommended by his doctor. Under defendant's policy, an employee may be given a light duty assignment for a maximum of 120 days, which included an initial period of 60 days with one 60-day extension. After plaintiff reinjured his back in November, the 120 days had expired and plaintiff was placed on disability leave.

At about the same time, plaintiff began a second course of Infergen injections to treat his Hepatitis C. The treatments began in April of 1999 and were scheduled to end in April of 2000. Dr. Wang wrote a second letter to defendant again recommending light duty based on the side effects from the Infergen injections.

On July 3, 2000, plaintiff returned to work with a letter from his back doctor clearing him for full duty. Aside from his physical therapy sessions for his back, plaintiff was at work performing his full duties. At the time, the return-to-work coordinator at the Institute, Kristi Hilliker, reviewed a doctor's report, which was prepared in 1997 for plaintiff's workers' compensation claim, that required that plaintiff be limited to a minimum of physical activity.³ After Hilliker informed Associate Warden Sheila Tatum that plaintiff should not have been cleared for full duty, they decided to meet with plaintiff.

On the same day, July 17, 2000, plaintiff went to Hilliker's office because he felt fatigued because of his condition, which was aggravated by the heat of the day. Hilliker and plaintiff went to Tatum's office. Plaintiff complained of fatigue and asked to see his doctor. Based on plaintiff's work restrictions, Hilliker and Tatum decided that plaintiff was incapable of performing his duties. They discussed various options, but refused to allow plaintiff to return to his position as a stationary engineer. Plaintiff initially selected the option of disability retirement.

After the meeting, there was some communication between plaintiff and Hilliker concerning the options. In a letter dated October 2, 2000, Hilliker informed plaintiff that unless he obtained a letter from Dr. Markovitz clearing him for full duty, he could not return to his position as a stationary engineer. The letter also set forth other options, including vocational rehabilitation, medical leave, and disability retirement. Plaintiff did not respond to Hilliker's letter.

Instead, in November of 2000, plaintiff went back to the Institute and asked Hilliker if he could return to work. Hilliker denied his request based on the earlier findings of the workers' compensation judge.⁴ When plaintiff did not submit an application for disability retirement, Hilliker completed the application on plaintiff's behalf and Tatum signed the application.

Plaintiff filed a claim for disability discrimination with the Department of Fair Employment and Housing.

Plaintiff subsequently filed his complaint for damages in superior court alleging that defendant discriminated against him based on his disability and failed to accommodate his disability in violation of the FEHA. The jury returned a general verdict for plaintiff and awarded him $597,088 in economic damages and $2,000,000 in noneconomic damages.

Defendant moved for a new trial challenging the trial court's decision to exclude Dr. Markovitz's testimony. During the hearing on defendant's motion, the trial court noted that the evidence did not support the jury's award of $2,000,000 in noneconomic damages. Thus, while the court rejected defendant's arguments, it nevertheless ruled that the motion would be granted unless plaintiff accepted a remittitur. Plaintiff filed a notice of acceptance.

Defendant appealed from the court's judgment and plaintiff appealed from the court's conditional ruling granting defendant's motion for new trial.

3. Prima Facie Case Under the FEHA

Plaintiff alleged two separate causes of action under the FEHA: disability discrimination under section 12940, subdivision (a), and the failure to provide reasonable accommodation under section 12940, subdivision (m).

A. Disability Discrimination

In regards to plaintiff's cause of action for disability discrimination, the primary question is: does plaintiff have to prove that he...