Opinion
H041073
10-05-2017
LARRY M. APARICIO, Plaintiff and Respondent, v. INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL UNION NO. 3, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-11-CV-215307)
International Union of Operating Engineers Union Local No. 3 (Local 3) appeals from a judgment entered after a jury found it liable for wrongful termination based on disability discrimination. Defendant contends that there was insufficient evidence to support the verdict because (1) plaintiff was unable to work more than eight hours a day, which was an essential function of his job; and (2) defendant's nondiscriminatory motive alone would have led to plaintiff's termination. Defendant further challenges the trial court's refusal of its proposed special instruction, which would have told the jury that an employer has no duty to make a temporary accommodation permanent if doing so would create a new position just for that employee. We will affirm the judgment.
Background
Local 3 is a labor organization representing 35,000-38,000 workers in different industries across northern California, northern Nevada, Utah, and Hawaii. In the union itself there were approximately 187 employees at the time of trial. Those employees were assigned to 15 geographic districts, including District 90, headquartered in Morgan Hill. Some of these employees were themselves represented by a union, but most were not. The unrepresented group included about 80 "business representatives," or "business agents," the position occupied by plaintiff. His duties included helping negotiate contracts for members, meeting with other trade unions and company representatives, "policing" job sites in his territory (consisting of seven cities in Santa Clara County), investigating industrial accidents, and attending evening meetings. During political campaigns a business agent would spend long days "phone banking" and walking the precincts for a candidate.
Plaintiff explained that policing his territory involved visits to the job sites to ensure that members were doing their jobs, that they were being treated in conformity with their employment agreements, and that there were no safety violations or safety concerns.
Besides plaintiff, three other business representatives served the four California counties in District 90: Manuel Pinheiro, Al Sousa, and Michael Weltz. The territory covered by plaintiff, however, was the busiest of the four; it comprised San Jose, Campbell, Los Gatos, Sunnyvale, Mountain View, Los Altos, and Saratoga. He regularly visited all the job sites in that area. On Wednesdays he also had to work at the union hall in Morgan Hill from 7 a.m. until at least 8:00 p.m.; that was the only day that the hall was open late, and plaintiff was never assigned a different day. On Fridays plaintiff was expected to be at a weekly meeting by 7:00 a.m.
Local 3 had a business manager, the role served by Russell Burns during plaintiff's employment. Burns was responsible for overseeing the four jurisdictions encompassed in Local 3's territory; all employees of Local 3 reported to him. Below Burns in the "chain of command" was the district representative, who was responsible for the operation of the district assignments and who supervised the business representatives. Steven Harris was the district representative during plaintiff's employment. Also reporting to Burns was the human resources director, Mariano Gonzalez, whose position included giving advice on employment terminations. Fred D. Herschbach, who began at Local 3 in 1996 as a business representative, became a district representative in 2001 and, in September 2006, president, the position just below the business manager. Herschbach testified that it was the business manager who made the decisions to hire and fire business agents. All business representatives were subject to an at-will employment policy.
In August 2008, while returning from a trip to a scheduled appointment, plaintiff was in a highway traffic accident. He sustained serious injuries to his head, neck, and back, and he shattered a rib. By the time of trial, notwithstanding a high pain threshold, plaintiff was in pain every day, "[e]verywhere" in his body.
Plaintiff nevertheless returned to work on October 6, 2008, two months after the accident. That day and the next he worked 10 hours each day. The third day he worked 13 hours, and the next two days were 10-hour workdays. On October 11, a Saturday, he did "precinct walking" for six hours.
Plaintiff began seeing a neurologist, Dr. Thynn Lynn, in September 2008 for his headaches, dizziness, numbness and tingling, and neck and back pain. On October 21, 2008, Dr. Lynn submitted a report to Local 3 indicating that plaintiff should be restricted to an eight-hour workday. The days after that varied between eight and 13 hours, until on November 21 Dr. Lynn reduced plaintiff's recommended hours to four. Plaintiff then took a vacation and additional time to manage his recovery, but in early December of 2008, he was limited to six-hour days.
Dr. Lynn's January 2009 report maintained the six-hour restriction; it also maintained a previous limitation on lifting to 15 pounds and driving to 15 miles or 30 minutes. Plaintiff nonetheless continued to drive 40-45 minutes despite the pain because he "had a job to do." Plaintiff gave each doctor's report to Harris, but Harris never discussed any of them with plaintiff. During that January plaintiff worked between six and 10 hours. Although plaintiff had his own area to cover, Harris began giving him extra work in areas outside plaintiff's regular territory. When plaintiff asked Harris why he was being given other employees' problems to deal with, Harris responded, "Because I know you can deal with it" and walked away.
The September 17, 2009 report indicated that plaintiff was returned to an eight-hour workday. In the weeks after that plaintiff worked only two eight-hour days and three nine-hour days; the rest were "double digits." He also continued to work the union hall shift each Wednesday till 8:00 p.m.
During the period of the recommended restriction, Sousa expressed resentment that plaintiff could work only eight hours. Sousa complained about covering a large construction company in his territory, so Harris reassigned the site to plaintiff, who then had to work outside his jurisdiction on his restricted schedule. Another business agent, Pinheiro, complained that the Caltrans workers in Santa Cruz did not like him, so Harris reassigned Caltrans in Santa Cruz to plaintiff, along with a job site in Ben Lomond and one in Scotts Valley. Herschbach, the president of the organization, spoke to Harris about the extra work being given to plaintiff, but Harris "just kind of blew it off."
Sousa and Harris were friends who often socialized together during and outside of working hours. They appeared to have a close relationship. Plaintiff described Sousa as a "bitter, angry person."
Plaintiff continued to submit reports from Dr. Lynn, but in January 2010 Harris began telling plaintiff to give the report directly to his staff assistant without looking at it. Through the first half of 2010 plaintiff continued to work more than 10 hours a day despite Dr. Lynn's reports; no one reduced his hours or lightened his schedule. By July, however, plaintiff himself cut back to eight hours, because he felt he was "breaking [his] back" for the union's members while Harris simply added more to his workload in an apparent effort to force plaintiff to quit.
Over the five months following plaintiff's self-imposed reduction, he covered his territory without missing any appointments. He was able to monitor what was going on because he had learned over time to be efficient at his work. No major negotiations had to be dealt with during this period, but if there had been any, he would have worked longer to handle the situation.
On a Saturday afternoon, November 27, 2010, Harris telephoned to tell plaintiff that some personnel changes were going to be made, but plaintiff was "safe." The following Monday, plaintiff was told to attend a meeting in the Alameda office on December 1 at 7:00 a.m. At the meeting Burns, the district manager, told the business agents that there had been seven meritless complaints made about Harris, and if the agents had any problems they should take them to Harris first and then Gonzalez, the human resources director. Burns made it clear that from then on, Harris had "full authority over District 90." Plaintiff raised the issue of the extra work being given to him, and he noted that Harris would act like a "bully" to the female staff and make them cry. Herschbach had conveyed the same impression to Burns in the past.
According to Herschbach, Harris "had a hard time managing people"; he threatened terminations. Plaintiff described the office climate in general as "[t]ense" when Harris was around, but "[p]retty laid back when he wasn't." Herschbach believed that plaintiff was one of the people Harris "targeted." Harris also "padded" his time card so as not to report vacation or sick time.
Later that day Harris called plaintiff at home to ask why plaintiff was not at the office. Plaintiff earlier had twice called Weltz, who was manning the dispatch, to see if Weltz needed help at the office, but Weltz did not need him. Plaintiff explained to Harris that he had started work early in the morning and was observing his eight-hour restriction. Harris was "very mad"; he loudly demanded that plaintiff be at the office by 7:00 a.m. the next morning. Concerned that he was going to be fired, plaintiff called Herschbach, who was at a meeting in Hawaii. Herschbach assured plaintiff that Harris did not have the authority to fire him.
Plaintiff walked into the office at 7:03 or 7:04 a.m. the next day. Harris said, "You're late." Harris told plaintiff that from then on, he would have to work from 7:00 a.m. to 3:00 p.m. Plaintiff pointed out that he was already working during those hours and longer; the only change in his schedule was prompted by a request from Sousa that he work from noon to 8:00 p.m. on Wednesdays, and sometimes members wanted to see him before the shift, so he went home after those eight hours. Harris professed ignorance about plaintiff's restricted hours and told plaintiff that he could not come and go as he pleased; from then on, he warned plaintiff, "you're going to do what I say."
It seemed to plaintiff that Harris was baiting plaintiff into an argument. According to plaintiff, he told Harris he didn't know why Harris was "harassing" him and "going on a power trip." At that point, plaintiff testified, Harris "became very angry and he pushed his chair away from his desk. And I stood up, and he approached me and he had his finger pointing in my face telling me, You think I'm going on a fucking power trip. Give me your fucking phone and keys. You're fired. Now, I'm on a power trip."
Plaintiff denied the allegation that he himself had been using profanity during this meeting; he was already uncomfortable about what was going on, and he felt that Harris wanted him to get angry and say something detrimental to his career. He did use "obscenities" at times, but not on this occasion, because he felt that in this "explosive environment" any misconduct could cost him his job. Weltz, who was down the hall from the closed door, heard raised voices, but no yelling or profanities. Sousa also heard "some loud discussion" but he could not hear the words. After plaintiff emerged from Harris's office, Weltz heard plaintiff say he wanted confirmation from Herschbach that Harris had authority to fire him.
At trial the district manager, Burns, expressed the opinion that "foul language would be a part of insubordination" and thus a reason for termination. But after being presented with his deposition testimony, he admitted that the use of such language was not prohibited at Local 3. Business agents themselves typically used "[r]ough language" around each other; it was a "locker room" atmosphere. Often they would swear at each other "jokingly and sometimes not jokingly." Harris himself used a lot of "four-letter words."
Plaintiff refused to give up the phone and keys, saying that Harris did not have the authority to fire him. Plaintiff was unaware that Burns had authorized Harris to do so if there was "any type of conflict" during the meeting. Shortly afterward plaintiff called Herschbach, who called Burns. Burns confirmed that plaintiff had been ordered off the property, but he refused to discuss any details with Herschbach.
Plaintiff applied for unemployment benefits, which were denied. The reason given was insubordination. The termination was a traumatic experience for plaintiff. In 2013 he began treatment for depression and attended courses on pain management. The physical limitations caused by plaintiff's injuries made certain jobs and other activities he had previously been engaged in, such as construction work, difficult or impossible for him.
At trial Burns could not recall a specific policy that defined or prohibited insubordination.
Trial on plaintiff's complaint—which is not in the appellate record—began with opening statements before the jury on January 9, 2014. Plaintiff's counsel presented the case as one alleging wrongful termination based on plaintiff's medical disability, while the defense told the jury that plaintiff was terminated for "insubordinate conduct" toward Harris.
Evidently Local 3 did not procure an adequate record from which to relate the procedural history of this case. We will disregard the entire Statement of the Case in Local 3's opening brief, as it makes statements unsupported by any references whatsoever to the record.
The jury was instructed on the elements of disability discrimination as proscribed by the Fair Employment and Housing Act (FEHA), Government Code section 12940, subdivision (a). Thus, CACI No. 2540, as read to the jurors, told them the following: "Larry Aparicio claims that the union wrongfully discriminated against him based on his disability. To establish this claim, Larry Aparicio must prove all of the following: Number one, that the union was an employer; number two, that Larry Aparicio was an employee of the union; number three, that the union knew that Larry Aparicio had a disability or believed that he had a disability which limited major life activities; number four, that Larry Aparicio was able to perform the essential job duties with reasonable accommodation for his disability; number five, that the union discharged Larry Aparicio; number six, that either Larry Aparicio;s history of a disability was a substantial motivating reason for the union's decision to discharge him or the union's belief that Larry Aparicio had a history of a disability was a substantial motivating reason for the [union's] decision to discharge him; number seven, that Larry Aparicio was harmed; number eight, that the union's conduct was a substantial factor in causing Larry Aparicio harm."
The court also instructed the jury on the concept of "mixed motive," as follows: "If you find that the employer's action which is the subject of plaintiff's claim was actually motivated by both discriminatory and non-discriminatory reasons, the employer is not responsible for damages to Plaintiff if it can establish by a preponderance of the evidence that its legitimate reason standing alone would have induced it to make the same decision. [¶] An employer may not prevail in a mixed[-]motives case by offering a legitimate and sufficient reason for its decision, if that reason did not motivate it at the time of the decision. Neither may [an employer] meet its burden . . . by mere[ly] showing that at the time of the decision it was motivated or [sic] only in part by a legitimate reason. The essential premise of this defense is that a legitimate reason was present and standing alone would have induced the employer to make the same decision." (See BAJI No. 12.26; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 213.)
On January 22, 2014, the jury found, by special verdict, that Local 3 had terminated plaintiff for both a discriminatory and a legitimate nondiscriminatory reason. The discriminatory reason—plaintiff's physical condition—was "a substantial motivating reason for [Local 3's] decision to discharge [plaintiff]," and it was a "substantial factor in causing harm to [plaintiff]." The jury further found that the "legitimate non-discriminatory reason standing alone" would not have induced Local 3 to make the same decision to terminate plaintiff's employment. The jury awarded plaintiff economic damages of $900,000, plus $200,000 in punitive damages attributable to Harris's "malice, oppression or fraud." The court entered judgment on the verdict on February 20, 2014.
Local 3 moved for a new trial on both liability and damages, which the court denied. Evidently (in a motion that is not in the appellate record) Local 3 also moved for judgment notwithstanding the verdict; the court partially granted that motion, striking the jury's award of punitive damages. This timely appeal followed.
The court also awarded attorney fees to plaintiff. That separate postjudgment order is not before us in this appeal.
Discussion
1. Sufficiency of the Evidence of Disability Discrimination
The FEHA, on which the verdict was predicated, makes it an "unlawful employment practice" "[f]or an employer, because of . . . physical disability . . . of any person . . . to discharge the person from . . . employment." (Gov. Code, § 12940, subd. (a).) The statute then sets forth certain exceptions to the employer's liability. For example, an employer may discharge an employee with a physical disability or medical condition where the employee, because of that physical disability or medical condition, "is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations." (§ 12940, subds. (a)(1), (a)(2).)
All further statutory references are to the Government Code unless otherwise indicated.
Local 3 first contends that there is insufficient evidence to support the jury's finding that plaintiff was protected by the FEHA, because he was unable to safely perform the "essential function" of his job by working overtime, and no reasonable accommodation was available. Local 3 acknowledges the standard by which this court must review the verdict. " 'Actions for unlawful discrimination and retaliation are inherently fact-driven, and we recognize that it is the jury, and not the appellate court, that is charged with the obligation of determining the facts. Nonetheless, the jury's verdict stands only if it is supported by substantial evidence. "In determining whether a judgment is supported by substantial evidence, we may not confine our consideration to isolated bits of evidence, but must view the whole record in a light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court. [Citation.] We may not substitute our view of the correct findings for those of the trial court [or jury]; rather, we must accept any reasonable interpretation of the evidence which supports the [factfinder's] decision. However, we may not defer to that decision entirely. '[I]f the word "substantial" means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.' ["] [Citations.]' " (Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1218-1219.) Accordingly, while we are not permitted to weigh the evidence or evaluate the credibility of the witnesses (Leff v. Gunter (1983) 33 Cal.3d 508, 518; Behr v. Redmond (2011) 193 Cal.App.4th 517, 527), we may not "blindly seize any evidence" to support the verdict, and "[w]hile substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding. [Citations.]" (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
On appeal, Local 3 maintains that overtime was an essential job duty which precluded an eight-hour workday in order to maintain the quality and level of representation the members expected. Local 3 cites several cases in which overtime was accepted as an essential function of the employee's position, leading to the court's conclusion that the plaintiff employee was not protected under the FEHA or the analogous provisions of the Americans with Disabilities Act (ADA). (See, e.g., Rincon v. Am. Fed'n of State, Cnty, & Mun. Employees (N.D. Cal. Aug. 13, 2013) 2013 U.S. Dist. LEXIS 114403 at p. *40 [summary judgment granted where plaintiff was unable to work extended hours, an essential function of her union organizer job], affd. (9th Cir. 2016) 638 Fed. Appx. 631); Davis v. Florida Power & Light Co. (11th Cir. 2000) 205 F.3d 1301, 1305-1306 [where mandatory overtime work was an essential function of plaintiff employee's position, summary judgment properly granted for employer electrical company on disability discrimination claim]; Tjernagel v. Gates Corp. (8th Cir. 2008) 533 F.3d 666, 673 [summary judgment properly granted where plaintiff was unable to perform essential function of overtime, which was an explicit requirement according to job description].)
The identification of essential job functions, however, is a " 'highly fact-specific inquiry.' " (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.) In this case the jury found that plaintiff was "able to perform the essential job duties [of his position] with reasonable accommodation for his physical condition." In other words, plaintiff's eight-hour work restriction did not adversely affect the quality of his job performance. The record supports the verdict on this question. We are not at liberty to reweigh the trial evidence. The jury evidently found that the job requirements did not include overtime as an essential duty. The "Job Opening Notice" for the position, Defense Exhibit D, stated that business representatives "must be capable of performing duties: [¶] In high stress (crisis management) situations [¶] During irregular and extended hours [¶] While adapting to frequently changing laws, regulations, personnel and corporate philosophies [¶] Under all types of job-site conditions [¶] In an independent manner without support staff." The jury could reasonably have found that this list defined the essential duties of a business representative without specifically requiring every workday to exceed eight hours.
The trial court instructed the jury on the concept of essential job duties with CACI No. 2543, as follows: "In deciding whether a job duty is essential, you may consider, among other factors, the following: [¶] Whether the reason the job exists is to perform that duty, whether there is a limited number of employees available who can perform that duty, whether the job duty is highly specialized so that the person currently holding the position was hired for his or her expertise or ability to perform the particular duty. [¶] Evidence on whether a particular duty is essential includes but is not limited to the following: The union's judgment as to what functions are essential, written job descriptions prepared before advertising or interviewing the applicants for the job, the amount of time spent on the job performing the duty, the consequences of not requiring the person currently holding the position to perform the duty, the terms of a collective bargaining agreement, the work experiences of past persons holding the job, the current work experience of persons holding similar jobs, reference to the importance of the job in prior performance reviews. 'Essential job duties' do not include the marginal duties of that position. 'Marginal job duties' are those that if not performed would not eliminate the need for the job or those that would be readily performed by another employee, or those that could be performed in another way."
There was, as Local 3 emphasizes, substantial evidence that employees typically worked 10 hours or more when necessary. Before plaintiff insisted on complying with his doctor's recommended restrictions, he often worked 10 hours or more in a day, even after his injury. As late as the day before his termination, although he had gone home after eight hours, he called Weltz to see if Weltz needed his help at the office. The jury also heard that even while plaintiff was adhering to an eight-hour schedule toward the end of 2010, Harris himself commended plaintiff for seeing "more members during the eight hours than the rest of the guys were doing in their 10 hours." Business manager Burns had never received any complaints about the quality of plaintiff's work, his completion of assignments, or his judgment. Plaintiff had always been cooperative toward Burns and appeared to be a diligent employee. The jury could rely on this evidence to infer that plaintiff was able to perform the essential duties of his job, even while limiting his work period to an eight-hour day. 2. Insubordination as a Ground for Termination
Local 3 next argues that no substantial evidence supports the jury's finding that insubordination standing alone was an insufficient reason for terminating plaintiff. Local 3 emphasizes the at-will nature of plaintiff's employment and calls attention to testimony that plaintiff used profanity during the meeting at which he was terminated. Local 3 asserts that Harris "and other witnesses testified extensively as to Plaintiff's insubordinate conduct at the meeting where he was terminated." This is a misleading assertion, however, based on inaccurate citations to the record. Harris was the only person present at that meeting besides plaintiff; Harris testified that he remained calm while plaintiff accused him of "pull[ing] some bullshit fucking power trip" on plaintiff. Sousa's testimony, to which Local 3 directs us, does not support Harris's account; Sousa said that he heard loud discussion but no words. And Gonzalez, the Human Resources director, merely repeated what Harris had told him had occurred during the meeting. Plaintiff, on the other hand, testified that he did not use profanity, although Harris did; plaintiff was "already uncomfortable about what was going on" and did not want to risk his career by allowing Harris to make him angry. The jury's role in this factual dispute was to determine which witness, Harris or plaintiff, was more credible. It is not for us to second-guess its finding; rejection of the plaintiff's account is not justified unless his testimony was "inherently improbable or incredible, i.e., ' "unbelievable per se," ' physically impossible or ' "wholly unacceptable to reasonable minds." ' [Citations.]" (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065; accord, Nevarez v. Tonna (2014) 227 Cal.App.4th 774, 786.)
The analysis in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 is not relevant here. That decision established a three-step burden-shifting test in order to determine whether the true reason for an employer's action was legitimate or discriminatory: Initially the plaintiff must show a prima facie case of discrimination by adducing evidence that "(1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.) If the plaintiff establishes that prima facie case, the burden shifts to the employer to rebut the presumption of discrimination by showing that "its action was taken for a legitimate, nondiscriminatory reason." (Id. at p. 355-356.) If the employer makes that showing, the burden returns to the plaintiff to "attack the employer's proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive." (Id. at p. 356.) The case before us, however, involves a mixed motive, in which "there is no single 'true' reason for the employer's action." (Harris v. City of Santa Monica, supra, 56 Cal.4th at p. 215.) Instead, the jury found both a discriminatory and a legitimate reason for plaintiff's termination. The issue on appeal thus is not whether plaintiff was discharged for either a discriminatory or legitimate reason, but whether the legitimate reason alone would have induced Local 3 to make that same decision.
It is irrelevant to the issues raised on appeal that plaintiff was an at-will employee. The jury was instructed that at-will employment "is not a defense to the claims of disability discrimination."
Local 3 does not advance plaintiff's lack of credibility as a basis for reversal; it does suggest, however, that because the jury "manifestly concluded that Plaintiff had engaged to some degree in insubordinate conduct," there could have been no other basis for this finding of a legitimate reason for the termination decision. It is noteworthy, however, that the jury heard Burns's admission that while he believed the use of "foul language" to constitute insubordination and insubordination to be a ground for termination, the use of such language was not prohibited in the "locker room" atmosphere of Local 3. Moreover, during his testimony Burns could not recall a specific policy that defined or prohibited insubordination.
In any event, whether the jury determined that plaintiff was fired for using profanity or for other insubordinate conduct, it nonetheless also found that the company would not have done so for that reason alone. It is this ultimate finding that is primarily challenged with respect to the mixed-motive issue.
Local 3 contends that "there is no evidence, much less substantial evidence," to support the jury's finding that Local 3 would not have been induced to terminate plaintiff solely for insubordination. But it was Local 3's burden to convince the jury that the decision to terminate plaintiff would have been made for that reason standing alone. Accordingly, the substantial evidence rule is inapplicable here. "In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case . . . . [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, quoting Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; accord, Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965-966 (Valero); Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466; see also Caron v. Andrew (1955) 133 Cal.App.2d 402, 409 [trial court's finding that appellants failed to meet their burden of proving affirmative defenses must be upheld on appeal unless the evidence compelled the trial court as a matter of law to find these allegations to be true].)
Local 3 has not met that burden on appeal. The jury was entitled to rely on testimony indicating that the use of "foul language" was frequently heard among business agents and from Harris himself, that it was tolerated at Local 3, and that the union had no policy defining or prohibiting insubordination. The jury also could have inferred from the authorization from Burns the day before the final meeting that Harris had planned to terminate plaintiff if the meeting became heated. When plaintiff became distressed at Harris's "power trip" over the hours plaintiff had to work, Harris did not hesitate to invoke his authority to fire plaintiff. We cannot conclude from this evidence that the jury was compelled to find in favor of Local 3 on this issue as a matter of law. 3. Proposed Instruction on Reasonable Accommodation
The court declined to give a jury instruction requested by the defense, which would have recited a holding reached in Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227 (Raine). The instruction would have stated: "An Employer has no duty to accommodate a disabled employee by making a temporary accommodation permanent, if doing so would create a new position just for that employee." On appeal, Local 3 contends that the court prejudicially erred in excluding the proposed instruction.
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572; Morales v. 22nd Dist. Agricultural Association (2016) 1 Cal.App.5th 504, 524-525.) "We independently review claims of instructional error viewing the evidence in the light most favorable to the appellant." (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333; accord, Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 594.)
In Raine, the plaintiff police officer suffered a knee injury on the job and was reassigned to a temporary light-duty position at the front desk while the injury healed. When his doctor determined that the disability was permanent, Raine sought a reasonable accommodation. The police department, however, advised him that no position was available for a police officer with his qualifications and physical limitations. Raine took disability retirement and eventually sued under the FEHA. The trial court granted summary judgment for the defendant city, ruling that it was unreasonable to require the city to make the temporary assignment permanent, because that position was reserved for civilian police technicians, who received a lower salary and fewer benefits than police officers of Raine's status. Raine did not want a civilian position. The appellate court affirmed the judgment, holding that the FEHA, interpreted consistently with federal decisions addressing the ADA, did not require the city to convert Raine's temporary assignment to a permanent one, in effect creating a new position of front-desk officer. Such an accommodation in those circumstances, the court determined, would have been unreasonable as a matter of law.
Here, however, plaintiff was not calling upon his employer to create a new position for him, but only to allow him to fulfill the duties of his position with an assertedly reasonable accommodation in the form of an eight-hour restriction. It was for the jury to decide whether that accommodation was in fact a reasonable one and whether plaintiff was able to perform the essential functions of his position (as those functions were understood by the jury) within that limitation. (See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 953 [reasonableness of an accommodation is ordinarily an issue for the jury]; accord, Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1389, fn. 6.) As we have already concluded, the jury's finding that plaintiff was in fact able to continue performing the essential duties of his job is supported by the record of the trial testimony and exhibits.
Disposition
The judgment is affirmed.
/s/_________
ELIA, J. WE CONCUR: /s/_________
PREMO, Acting P. J. /s/_________
BAMATTRE-MANOUKIAN, J.