Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County. Ct. No. MCV039150, Mitchell C. Rigby, Judge.
Penner, Bradley & Simonian, Peter Sean Bradley, for Plaintiff and Appellant.
Cota Cole & Associates, Dennis M. Cota, Ryan R. Jones, and Carolyn J. Frank, for Defendant and Respondent.
OPINION
Wiseman, Acting P.J.
Plaintiff Roger Mann sued defendant County of Madera after the county forced Mann, a deputy sheriff, into a retirement based on disability. Mann claimed the county discriminated against him on the basis of disability and failed to offer him a reasonable accommodation in violation of the Fair Employment and Housing Act. A jury found for the defense. Mann now asserts the verdict was based on insufficient evidence. He also claims the court erred in denying his motion for a new trial, which was based on an allegation of juror misconduct and on the failure of the trial judge or a substitute judge to be available when the jury had a question at one point in its deliberations. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
The Madera County Sheriff’s Department hired Mann in 1997. In 1998, Mann’s right elbow (the bicep tendon) and right shoulder were injured while he was arresting an uncooperative suspect. The shoulder needed surgery and Mann was given light duty for two months. In 1999, Mann stepped in a hole in the road while conducting a traffic stop and injured his left knee. The shoulder needed additional treatment in 1999, leading to two months away from work and two more months of light duty.
In February 2000, Mann saw his doctor about discomfort in the elbow and the knee. In September 2000, Mann had surgery on the elbow, which was immobilized in a brace for a month. At the same time, the knee was causing additional discomfort and limiting Mann’s motion. Due to the elbow surgery, Mann missed some work and had work restrictions until January 2001. The knee became painful again in August 2001 and Mann was given a doctor’s note excusing him from tasks involving running. Mann injured his left elbow during a confrontation with a suspect in March 2002. In February 2003, the knee required bone-graft surgery. As of September 2004, Mann’s doctor was recommending no prolonged standing or walking.
In October 2004, Mann took 30 days of family leave for the birth of his son. As it turned out, he never returned to work. Before the leave was over, his left elbow flared up and his doctor took him off work. After a delay, doctors performed surgery on the elbow and corrected the problem in March 2005. Mann was released to work without restrictions in May 2005, after his recovery from this surgery. In June 2005, however, Mann was examined by his doctors, who found there were still problems with his left knee, right shoulder, and left elbow, which were limiting his ability to run, jump, lift, and grip. Three doctors agreed that Mann could not safely work as a patrol deputy, but might be able to work as an investigative sheriff.
In December 2005, Mann met with Sheriff John Anderson about returning to work. He presented Anderson with a form from his doctor, dated October 2005, stating that he could do light-duty work. Mann and Anderson discussed the possibility that Mann could return to work as a detective working cold-case files. Anderson then asked Undersheriff Frank Benard to confirm that Mann was cleared to return to work. Benard called a county employee, who contacted the county’s third-party workers’ compensation administrator. The workers’ compensation administrator told the county employee that Mann was not cleared to return to work, and the county employee reported this to Benard. When Benard told this to Anderson, Mann said he would get a note from his doctor releasing him to return to work. Anderson advised Mann to contact Kathy Taylor, the county’s director of human resources.
On December 9, 2005, Dr. Richard Baker examined Mann. The record does not show whether this examination happened before or after Mann’s meeting with Anderson. The examination was done for workers’ compensation purposes, and Baker had been designated the agreed medical evaluator (AME). According to Baker’s report, prepared on February 8, 2006, Mann had permanent disabilities of his right shoulder, left knee, and both elbows. For the left elbow, Baker opined, Mann should be precluded from “Very Heavy Lifting, Repetitive Forceful Torquing, and Repetitive Forceful Pushing/Pulling.” For the right shoulder and elbow, Baker recommended preclusion from “Heavy Lifting, Repetitive Over-Shoulder Work, Forceful Pushing/Pulling, and Forceful Torquing.” For the left knee, he recommended precluding “Very Heavy Lifting, Repetitive Climbing, Repetitive Squatting/Kneeling, Repetitive Pivoting, or other comparable activities.” Baker also opined in the report that Mann “should not resume work as a deputy sheriff, ” by which he meant patrol deputy. Baker provided the report to an attorney who represented the county in workers’ compensation matters.
At trial, Baker further explained that the left knee was “Mann’s biggest problem”:
“I’ve recommended that he not engage in prolonged weightbearing, meaning prolonged standing or walking, heavy lifting, climbing, squatting, kneeling, crouching, crawling, pivoting, running, jumping and prolonged walking on uneven ground. So if we take those restrictions and we translate them to activities that a law enforcement officer could be required to perform, I would not see Mr. Mann as able to chase after individuals, to—to get over obstacles in pursuits. I would not expect him to be able to be involved in altercations with individuals. If, for example, Mr. Mann was expected to work in mountainous or uneven terrain for a long period of time, which potentially could happen, he would not be able to do that. If he was required to stand and walk throughout a work shift, meaning at least an eight-hour shift, I don’t think he could do that. [¶] I could see where getting into and out of a patrol vehicle multiple times a day could be analogized to squatting or stooping, and I think he would have difficulty with that.”
Baker also testified that in October 2005, before the examination, Mann filled out a questionnaire describing his symptoms. Mann stated in the questionnaire that, while he could stand for eight hours before he was injured, he could stand for only 30 minutes at the time he filled out the questionnaire.
Dr. Eric Hanson was Mann’s treating physician and one of the doctors who opined in June 2005 that Mann should not return to work as a patrol deputy. Hanson saw Mann again on January 9, February 9, and May 18, 2006. On January 9, Mann had knee pain that had developed from walking. Hanson gave Mann an intra-articular injection. On February 9, at a follow-up appointment, Mann reported that the injection had helped for a couple of days and then the pain returned. On May 18, the knee pain and activity intolerance were continuing. In reports submitted to the county’s workers’ compensation administrator for each date, Hanson stated that Mann remained temporarily totally disabled.
Also on May 18, 2006, Mann met with Kathy Taylor, the human resources director. Mann testified that he and Taylor talked for 15 minutes. He claimed he told Taylor he wanted to return to work at the sheriff’s department, but if he could not go back there he was interested in other county employment. In the sheriff’s department, he said he was interested in jobs that would not require him to go on patrol, such as detective, investigator, training officer or range master. He told Taylor he was aware that some sheriff’s deputies had been allowed to work in light-duty positions, but that the sheriff did not allow him to do so. As for work in other county departments, Mann said he was interested in being a probation officer, an investigator in the district attorney’s office, a welfare-fraud investigator, or an employee of the Solid Waste Abatement Task Force. Mann testified that Taylor told him she would contact the district attorney’s office and the probation department to see if they had openings. Mann’s impression at the end of the meeting was that Taylor would make inquiries about various jobs and get back to him.
Taylor’s testimony about the May 18, 2006, meeting was different. She said:
“At the conclusion of the meeting with Mr. Mann on—in May of 2006, the—Mr. Mann had indicated that he really did not want to explore other options for returning to work until he had fully exhausted what he believed was the possibility of returning to patrol—as a patrol deputy. So he indicated to me that he was going to go back to his doctor and he was going to get a full release to return to his usual duties. So the end of our conversation was that the ball was being put in Mr. Mann’s court, and that he will contact me after he got something from his doctor. So when I had not heard from him by February of ’07, the next thing to do was to attempt to either have Mr. Mann contact the office to continue that process, or to pursue the PERS disability retirement on his behalf.”
Taylor said she discussed the position of code enforcement officer with Mann, but Mann did not want that job. “Mr. Mann had no interest in a Code Enforcement Officer position, nor in any position other than the deputy sheriff position. And he truly wanted to return to his usual duties, ” she said. She testified that Mann told her, “‘Let’s just hold off on that. Let me go back to my doctor. Let me see if I can get a release to return to my usual duties.’” Her impression from their conversation was that “he didn’t even care to venture into that—into alternate positions. He wanted to gain a release from his doctor to return to his usual duties as deputy sheriff.” Mann also told her that if he could not go back to work as a patrol deputy in Madera County, he would like to work in another county, such as Merced. “And then we once again discussed his return to work in his usual duties, and said he was going to go get the—the release from his doctor, and that was the end of our meeting.”
Taylor also said, however, that she “personally did not draw a conclusion” about whether Mann would rather leave county employment than take a job outside the sheriff’s department. She told Mann he would need a doctor’s release with no medical restrictions before he could return to work as a patrol deputy. According to Taylor, Mann never brought a release and never returned to see her. He also never sent her a letter or an e-mail message or left her a phone message.
Mann, however, testified that he did attempt to follow up with Taylor after their meeting. He said he dropped a medical release off at her office in September 2006. He also called her office at least half a dozen times and was told each time that she was unavailable. Once he went in the office and was told that Taylor was unavailable. Mann conceded that he never wrote Taylor a letter or an e-mail. The medical release was from Dr. Hanson and stated, as Dr. Hanson had said before, that Mann “is a good candidate to work as a detective or investigator, ” but that it “is inappropriate and he on a permanent basis is precluded from working as a patrol officer.”
On February 28, 2007, Taylor sent Mann a letter saying: “Please be advised that in the absence of any accommodation that would enable you to return to work, it is the County’s intent to make application with the California Public Employees’ Retirement System (CalPERS) for your disability retirement as legally required.” Mann received the letter. In a letter to Mann dated April 20, 2007, Taylor wrote that the human resources department would be requesting authorization at a board of supervisors meeting on May 1, 2007, to submit a disability retirement application for him. Mann did not sign the certified mail receipt and the letter was returned to the county. He testified that he did not receive the letter. The board of supervisors approved the application. The human resources department forwarded it to CalPERS on May 7, 2007, with a copy to Mann, which Mann received.
On May 11, 2007, Mann’s attorney sent a letter to Taylor asserting that, by proceeding toward a disability retirement, the county had discriminated against Mann because of his disability and had violated the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.). The attorney wrote that, although Mann tried to contact Taylor after the May 18, 2006, meeting, no one had ever gotten back in touch with him, and this was an actionable failure to engage in an interactive process. The attorney was in the process of obtaining a right-to-sue letter from the Department of Fair Employment and Housing.
The board of supervisors adopted a resolution on August 14, 2007, supporting the application for disability retirement. The resolution found that Mann “is incapacitated within the meaning of the Public Employees’ Retirement Law for performance of his duties in the position of Deputy Sheriff.” In a letter dated October 9, 2007, CalPERS notified Mann that his employer had found him to be incapacitated, that his retirement date would be May 1, 2007, and that any appeal must be made through his employer. Mann did not challenge the retirement proceedings at that time. He did successfully request that the start date for his benefits be moved back from May 1, 2007, to March 17, 2006. A county form signed by Anderson on October 22, 2007, and by Taylor on October 23, 2007, stated that Mann’s employment was terminated because of his disability retirement and that March 16, 2006, was his last day of paid status.
The appellate record does not show when Mann filed suit and does not contain a copy of his complaint. We infer from the special verdict form submitted to the jury, however, that he alleged three violations of the FEHA arising from discrimination based on disability. First, Mann claimed that the county failed to engage in an interactive process with him to determine whether it could provide reasonable accommodations that would allow him to continue to be employed in county work of some kind. Second, he claimed that the county failed to provide him with these reasonable accommodations because it failed to place him in some county job that was compatible with his physical limitations. Finally, he made a claim called “disability discrimination, ” which focused on his contention that he should have been retained in his position as a deputy sheriff.
In a special verdict form, the jury found for the county on all three alleged violations. It found, as a preliminary matter, that Mann had a physical disability as defined by the FEHA. It also found that the county was aware of the disability. On the interactive-process claim, the jury found that Mann requested a reasonable accommodation and that he was willing to engage in a timely, good-faith interactive process, but that the county satisfied its obligation to participate in that process with him. On the reasonable-accommodation claim, the jury found that a reasonable accommodation was available to the county for Mann’s disability, but the county did not fail to provide one to Mann. Finally, the jury found that Mann did not prove the county discriminated against him by refusing to reinstate him as a deputy sheriff because Mann was not able to perform all the essential duties of a deputy sheriff with or without reasonable accommodation. The court entered judgment for the county and denied Mann’s motions for partial judgment notwithstanding the verdict and for a new trial.
DISCUSSION
I. Sufficiency of the evidence
A. County’s provision of reasonable accommodation
Mann argues that there was insufficient evidence to support the jury’s finding that the county did not fail to provide a reasonable accommodation for his disability. On issues where Mann had the burden of proof, we must affirm unless it would be impossible for any rational fact finder to reject his showing. (Blank v. Coffin (1942) 20 Cal.2d 457, 461-462 [jury’s failure to find fact is erroneous only if “evidence contrary to the existence of the fact is clear, positive, uncontradicted, and of such a nature that it cannot rationally be disbelieved”]; Byrum v. Brand (1990) 219 Cal.App.3d 926, 946-947; Horn v. Oh (1983) 147 Cal.App.3d 1094, 1099-1100.)
Where the county had the burden of proving a defense, we must affirm if there was substantial evidence supporting the defense. “When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof.” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
Under the FEHA, an employer must provide a reasonable accommodation for an employee’s known disability unless the accommodation would cause an undue hardship for the employer. (Gov. Code, § 12940, subd. (m); Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) In this case, the jury was instructed both that Mann had the burden of proving that the county failed to provide a reasonable accommodation and that the county could avoid liability by showing, as an affirmative defense, that it offered Mann a reasonable accommodation and he refused it. There is no dispute about the correctness of these instructions.
We hold that the jury could both rationally reject Mann’s attempt to show that the county failed to provide a reasonable accommodation and rationally find that substantial evidence supported the county’s defense that it offered a reasonable accommodation and Mann did not accept it. The parties’ briefs separately discuss whether the county provided a reasonable accommodation outside the sheriff’s department and whether it provided one inside the sheriff’s department. We will do the same.
We conclude there was substantial evidence to support a finding that the county satisfied its obligations by proposing to investigate a number of positions outside the sheriff’s department for which Mann might have been qualified and which might have been compatible with his disability. The county had no obligation to actually offer Mann one of these positions because he indicated that he was not interested in them. There also was substantial evidence to support a finding that, within the sheriff’s department, there was no position available for which Mann could perform the essential functions, with or without a reasonable accommodation. As a result, the county had no obligation to offer him a job in that department.
1. Accommodation in county work outside the sheriff’s department
Taylor, the human resources director, testified that when she met with Mann on May 18, 2006, she discussed some jobs in other county departments which might be compatible with Mann’s disability and to which Mann could possibly be reassigned. She said Mann told her he did not wish to pursue these possibilities at that time and instead would attempt to obtain a medical release that would allow him to resume work as a deputy sheriff. According to Taylor, she never heard from Mann again.
As we have already highlighted, Mann’s testimony conflicted with Taylor’s account. He said he told Taylor he was interested in county work outside the sheriff’s department. He claimed he understood Taylor’s remarks to mean she would investigate a number of positions and they would talk further. He also said he made several attempts to contact Taylor afterward by telephone and in person but was never able to reach her. He admitted he never wrote to her.
On the basis of this conflicting evidence, the jury could reasonably find that the county offered Mann accommodation in the form of work outside the sheriff’s department and that Mann declined to pursue it because he was determined to return to work as a deputy sheriff. It could reasonably have found the contrary as well, but it is not our role to reweigh the evidence or reverse the jury’s credibility findings. In sum, the jury was entitled to believe Taylor and disbelieve Mann.
Mann argues that the jury was compelled to find that no reasonable accommodation was offered because the jury also found that the county had available means of accommodating Mann and that Mann was willing to engage in an interactive process to determine what accommodation would be suitable. He says: “[I]f there was substantial evidence to support the jury’s finding that Mann was willing to engage in a timely, good-faith interactive process … and that there were reasonable accommodations available to County …, the only logical reason for the fact that Mann never returned to work must be that County ‘failed to provide a reasonable accommodation for Roger Mann’s physical disability.’” We disagree. The jury was not required to find that no reasonable accommodation was offered just because accommodations were available and Mann was willing to engage in an interactive process. When it found Mann was willing to engage in an interactive process, it could reasonably have meant that he engaged up to a point and finally stopped because he did not get the result he wanted.
Mann also argues that the jury could not reasonably find that a reasonable accommodation was provided because the county never formally offered to reassign him to any position. Mann has not cited any authority, however, for this position. We also have not found authority to this effect. An employer who knows an employee is disabled has an affirmative obligation to make reasonable accommodations, including discovering other job opportunities within the organization and making them known to the employee. This does not mean, however, that the employer fails in its duty if it suspends its efforts after the employee says he is not interested.
In Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-951, the Court of Appeal held that “an employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees.” (Italics added.) If an employee is not interested in some alternative position or class of positions, the employer does not fail to provide a reasonable accommodation just because it does not pursue placing the employee in one of those positions against the employee’s wishes. In this case, the jury could reasonably find that Mann made it clear to Taylor that, until further notice from him, he was not interested in jobs outside the sheriff’s department. It could also believe Taylor’s testimony that Mann never subsequently told her he wished to pursue those possibilities after all.
2. Accommodation within the sheriff’s department
An employer must not, on account of disability, terminate an employee from a position or deny the employee reassignment to an available position if the employee can, with or without reasonable accommodation, perform the essential functions of the position. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977.) The employee must be able to perform the essential functions without endangering his own health or safety or that of others. (Gov. Code, § 12940, subd. (a)(1).)
The county claimed at trial that Mann could not perform the essential functions of any deputy sheriff position, even with reasonable accommodation, either at all or without endangering the health and safety of himself or others. The jury was instructed that, to prevail on these claims, the county was required to prove that the essential job functions included “the ability to engage in foot pursuits, ” “the ability to make arrests, ” “the ability to engage in physical altercations with suspects, ” “the ability to engage in high energy movement, ” and “the ability to drive.”
The county presented evidence that all the available positions in the sheriff’s department required these activities as essential functions. Sheriff Anderson testified that sheriff’s deputies must be able to sit, stand, run, kneel, crawl, jump, wrestle, and drive. He said 15 to 25 percent of arrests involve a foot chase or the need to control the arrestee physically. Undersheriff Benard agreed that deputies need to be able to make forceful arrests and that this often involves the need to run, crawl, stoop, and bend.
Sufficient evidence was presented to establish that Mann could not perform these functions. As we have said, Dr. Baker, who examined Mann in December 2005, testified that, because of his knee, Mann would not be able to chase suspects on foot, engage in physical struggles with suspects, stand or walk for long periods, or get in and out of a car repeatedly during a shift. In a questionnaire he filled out at Baker’s request in October 2005, Mann himself said that he could stand for only 30 minutes at a time. Dr. Hanson, Mann’s treating physician, stated in a report that, for similar reasons, Mann could not perform the usual duties of a deputy sheriff. Hanson wrote that Mann could work as a detective or an investigator, but the testimony of Anderson and Benard supported the conclusion that these assignments would also involve forms of physical exertion incompatible with Mann’s injuries.
Baker testified that he examined Mann again on March 19, 2009, which was about a month before the trial started. The results of this examination indicated that Mann’s physical limitations had not improved since the time Sheriff Anderson told him he could not return to work as a deputy sheriff. The biggest change he found between the two examinations was deterioration in the left knee. The pain had increased. Mann told Baker he experienced the pain daily. When asked to rate the pain on a scale of 1 to 10, with 10 being comparable to childbirth or passing a kidney stone, Mann told Baker the pain sometimes was a 10. Mann walked with a cane when the symptoms were worst. Baker found that Mann’s knee had advanced arthritis, was likely to worsen, and would eventually need knee replacement surgery.
Mann argues that he could have been given an assignment as a background investigator, detective, bailiff, or range master which would have enabled him to work in the department regardless of his physical limitations. The county, however, presented evidence that this was not true. Benard testified that detectives have the same responsibilities as other deputy sheriffs and must be able to make forcible arrests. Similarly, bailiffs need to be prepared to make forcible arrests and are subject to the same physical demands as other deputies. Anderson testified that range master is a part-time assignment taking about two days a month. Benard added that a person assigned as range master is still a deputy sheriff with all the usual duties.
With respect to background investigators, Anderson testified that some employees do background investigations and “you could classify it as a position.” A few officers and a few civilians have the necessary training and, “[i]f there are backgrounds to be done, we will assign one of these people to do it. Normally it’s the same person over and over.” For about 10 years, there was enough work in this area for about 80 percent of a full-time position. Sometimes a deputy who is on light duty while recovering from an injury is given a background investigator assignment. When a deputy sheriff is a background investigator, he or she still has the duties of a deputy sheriff, usually wears a uniform, drives a department car, and may have to make forcible arrests. Benard was questioned about several employees who had been assigned as background investigators at various times. He testified that none of these was employed exclusively as a background investigator and each was a deputy sheriff who had other responsibilities.
From all this testimony, the jury could reasonably find that the essential functions of any full-time, permanent job that Mann could have been offered in the sheriff’s department were incompatible with his physical limitations, with or without reasonable accommodation.
Mann argues that he could have been given a light-duty assignment and that other deputy sheriffs had been given light-duty assignments. There was evidence that one injured deputy was given light-duty work as a background investigator during his recovery and for a few months after his recovery. There was evidence that another deputy had been permanently removed from patrol duty and given another assignment because the district attorney did not consider him to be a reliable witness. Anderson testified that the Madera County District Attorney had issued a “Brady letter” stating that the district attorney’s office would not prosecute any case in which that deputy’s testimony was necessary and could not be corroborated by another witness. The deputy was given an assignment as a bailiff.
Brady v. Maryland (1963) 373 U.S. 83.
This evidence, however, does not compel the conclusion that the sheriff’s department had a position the essential functions of which Mann could have performed with or without reasonable accommodation. The deputy who was given light duty in the form of a background-investigator assignment was given that assignment temporarily. Anderson testified that there is no such thing as permanent light duty.
Mann does not claim a temporary reassignment would have been enough in his case, and the medical testimony indicated that his limitations were increasing, not decreasing. The availability of temporary reassignments therefore does not show that Mann could have been accommodated with a position within the department.
The deputy for whom the Brady letter was issued was made a bailiff, and there was evidence that a bailiff needs to be able to physically restrain an arrestee. Mann could not be expected physically to restrain arrestees. The evidence therefore did not compel the jury to find that Mann could perform the essential functions of some position in the sheriff’s department with or without a reasonable accommodation.
In sum, the evidence did not compel the conclusion that the county failed to provide Mann a reasonable accommodation because it did not offer him a position in the sheriff’s department. The jury could reasonably find there was no position in the sheriff’s department that Mann could perform the essential functions of with or without reasonable accommodation.
B. The county’s engagement in an interactive process
Under the FEHA, an employer with a disabled employee has a duty “to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations.…” (Gov. Code, § 12940, subd. (n).) An employer can incur FEHA liability by failing to engage in this process. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.) Mann argues that the evidence was insufficient to support the jury’s finding that the county satisfied this obligation. We disagree.
As we have said, the evidence supported the county’s claim that there were no positions within the sheriff’s department whose essential functions Mann could perform. With respect to positions outside the sheriff’s department, there was sufficient evidence to support a finding that Mann told Taylor he wanted to hold off on investigating these but then never followed up to let her know he was ready to resume. Mann argues that, “Taylor never did any investigation to determine if there was any position that he was qualified to take.” There is no rule requiring an employer to continue with the interactive process when an employee begins the process but then decides to discontinue it.
The jury did find that Mann was willing to engage in the interactive process, but, contrary to Mann’s argument, this is not necessarily inconsistent with a finding that he subsequently decided to discontinue it. The jury could have intended to find that Mann satisfied his obligation to engage in the interactive process by beginning that process with Taylor, even though he then told her he wished to delay the investigation of positions outside the sheriff’s department until later.
Mann argues that the county never engaged in an interactive process because the two people he spoke with—Anderson and Taylor—did not have sufficient knowledge of his abilities and disabilities to determine what kinds of work he could perform or what kinds of accommodations he would need. Without this information, they could not have been trying in good faith to discover a suitable accommodation. This claim is based on the fact that Anderson and Taylor both relied on the AME report prepared by Dr. Baker. Mann says, “[t]he problem with both meetings [i.e., Mann’s meetings with Anderson and Taylor] is that County’s representatives assumed wrongly that the Worker’s Compensation AME Report had determined whether Mann could not be accommodated within the Department.” Mann points out that the AME report stated that he could not return to work based on the conclusion that he could not perform the usual and customary duties of a patrol deputy—the appropriate standard for a determination about workers’ compensation. It did not say, however, whether he could perform the essential functions of any available position in the sheriff’s department, which was the question for FEHA purposes.
This argument is not persuasive. The conclusions in Baker’s report were based on facts about Mann’s physical limitations. Baker knew Mann could not engage in vigorous physical activity; Mann does not claim otherwise. There was substantial evidence that, because Mann could not engage in vigorous physical activity, he could not perform the usual and customary duties of a patrol deputy or the essential functions of any available position in the sheriff’s department. Although it is theoretically possible for the difference between workers’ compensation standards and FEHA standards to lead to confusion about the nature and extent of an employee’s disability, the jury was not compelled to find that any confusion arose in this case. It could reasonably find that the county knew Mann could not perform the essential functions of any available position in the sheriff’s department. As for positions outside the department, as we have said, the jury could reasonably find that Mann asked Taylor to suspend the process of finding one and never told her or anyone else he was ready to resume.
C. Disability discrimination
It is not clear how the “disability discrimination” claim differs, if at all, from the claims we have already discussed. Mann raises two additional arguments under this heading in his appellate briefs contending the evidence was insufficient to support the verdict.
First, Mann cites a federal case, McGregor v. National Railroad Passenger Corp. (9th Cir. 1999) 187 F.3d 1113, 1115-1116, for the proposition that policies requiring injured employees to be “‘100% healed’” before returning to work are “per se violations” of the federal Americans with Disabilities Act. We will assume for the sake of argument that this type of policy would also violate the FEHA. Mann claims a reasonable jury could not have found that the county did not apply a policy like this to Mann. We disagree.
Mann’s claim is based on testimony regarding the sheriff’s department’s policy on when injured deputies can return to work. Mann says this evidence shows that the policy was always to prohibit deputies from returning to work if they had any medical restrictions. The jury, however, could reasonably have found this was not true. For instance, Anderson testified that if, after an injury, a deputy has a doctor’s note saying his activities are limited, the deputy cannot return to full duty as a patrol deputy. He explained, however, that this meant a deputy could not return with limitations that prevented him from performing key duties, not that he could not return with any kind of limitations:
“Q Okay. [¶] With respect to officers who have a doctor’s note that says that they are limited as to the full range of duties, can such officers return to work full time as a patrol deputy? And my question is limited to the period 2000, 2005.
“A Can they return to full duty as a patrol deputy if they have limitations?
“Q Yes.
“A No, because that’s the question we ask: Can they return to full duty as a deputy sheriff? And most times they would say they cannot, or they have limitations; they can’t drive; they can’t run; they can’t wrestle, those kind of things, and so we would not put them on patrol.
“Q When a—in order to go on patrol, during the period 2000, 2005, the deputy sheriff would have to present a release without medical restrictions; is that correct?
“A Yes.
“Q All right. [¶] And was it the policy of the sheriff’s department that an officer could return to full duty as patrol officer only if they had such a release?
“A Yes.
“Q All right. [¶] Did the sheriff’s department have a practice that an officer had to be one hundred percent healed from an injury in order to return to work as a patrol officer?
“A No.
“Q Is that because some such people would be put into a light duty position?
“A No. It’s because a lot of times when you’re injured, you never recover one hundred percent. We have—I’ve worked with officers and deputies that, you know, have had 20, 30 percent disability ratings awarded by State comp. I would not call them one hundred percent with that rating, yet they are able—they have a doctor’s release that says they can do the full duties of the deputy sheriff.
“We have people that wear glasses. They’re not one hundred percent because they can’t see as well as they used to.
“We have people that wear hearing aids; they can’t hear as well as they used to, a lot of times because of gunshots and things like that. But if the doctor will certify that they can do the full range of duties of a deputy sheriff, even though there may be some disability, they’re not one hundred percent but they do come back and go to work.”
Benard similarly denied the existence of a “100 percent healed” policy and stated that employees with disabilities could return to work if they could perform the necessary tasks. The jury could have accepted this testimony and reasonably inferred from it that the county did not require injured employees in the sheriff’s department to show they were completely free of disability before returning to work. Instead, the county allowed them to return with disabilities if they were able to perform the essential functions of a job, with or without reasonable accommodation, as the law requires. The jury did hear deposition testimony by Benard that appeared to contradict his trial testimony on this point. The jury, however, was free to reject the deposition testimony or give greater weight to his trial testimony.
Mann’s second argument is that the county engaged in disability discrimination because it denied him positions in the sheriff’s department that he could have performed even without accommodation. He says he could have been a background investigator. As we have explained, however, the jury could have found, based on the testimony of the county’s witnesses, that doing background investigations was generally a part-time, temporary assignment and deputies who had the assignment also had the other duties of deputies. Mann says he could have been a detective because there was evidence that detectives sometimes brought uniformed deputies with them to carry out arrests. Although this may be true, the jury could have found that at times detectives still need to be able to carry out arrests on their own and engage in other vigorous physical activity.
Third, Mann contends that he could have been given a position like “the position fashioned for the Deputy with ‘ethical problems, ’” i.e., the deputy about whom the district attorney issued the Brady letter and who became a bailiff. Mann neglects to take into account the evidence that bailiffs must be able to engage in activities like physically apprehending or restraining arrestees.
Finally, Mann relies on testimony by Dr. Baker that Mann could sometimes, “on a very occasional basis, ” engage in certain physical activities. He says the county “never showed that engaging in such activities more often was required in those positions.” From the testimony we have discussed, however, the jury could reasonably have found that each of these jobs required an employee to be able to engage in physical activities more frequently than was compatible with Mann’s injuries.
II. Jury issues
A. Jury’s question during judge’s absence
While the jury was deliberating, it wanted to ask the judge a question. The trial judge was absent from the courthouse and a second judge disqualified himself, so the jury did not get an answer. It did not ask the question again after the trial judge returned. Mann claims this situation “denied [him] his fundamental right to a jury trial.” He says the trial court erred in denying him a new trial on this basis. We conclude that Mann has established neither error nor prejudice.
The trial judge told the parties he would be absent during the first day of the jury’s deliberations. A second judge would be assigned to be available if needed. If any issue arose requiring the trial judge’s action, the jury would be sent home for the day.
After the jury returned its verdict, Mann’s counsel contacted jurors and discovered that, during that first day, the jurors had a question. In three declarations obtained by Mann’s counsel, jurors stated that they wanted to ask the judge a question about the FEHA. One juror declared:
“After we picked a foreman, we started to go through the special verdict form. Several jurors had a question about Question Number 1 about the ‘Fair Employment and Housing Act.’ We asked the bailiff if we could ask the judge about the Fair Employment and Housing Act. The bailiff said that the judge was gone. He left the jury room. A little while later, the bailiff returned and knocked on the door. He told us that the temporary judge had ‘recused’ himself because he knew someone involved in the case. After the bailiff left the jury room, we decided to go on with the special verdict and answer the other questions before returning to Question 1.”
The declarations of the two other jurors included similar statements.
Mann relies on Code of Civil Procedure section 614, which provides:
“After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony, or if they desire to be informed of any point of law arising in the cause, they may require the officer to conduct them into Court. Upon their being brought into Court, the information required must be given in the presence of, or after notice to, the parties or counsel.”
He claims that cases applying this statute state that a failure to comply with it implicates a party’s right to a jury trial. He has not demonstrated, however, that any failure to comply with the statute took place in this case. The statute does not say that a party’s rights are violated when, for some reason, the trial court is not able to answer the jury’s question at the time the jury asks it.
The cases Mann cites make it clear that this statute has nothing to do with a trial court’s failure to be available when a jury has a question. All these cases concern communications between the court and jury that happened outside the presence of or without notice to counsel. (Carlson, Collins, Gordon & Bold v. Banducci (1967) 257 Cal.App.2d 212, 228-230 [after jury informed court that it had voted 11-1 for plaintiff and wished to see exhibits, court sent jury note, without informing counsel, saying 11-1 was verdict and they did not need exhibits; held, no error]; Nelson v. Southern Pacific Co. (1937) 8 Cal.2d 648, 655 [trial court erred by sending jury message via bailiff without presence of or notice to counsel]; People v. Rodriquez (1963) 213 Cal.App.2d 555, 559-561 [trial court erred by answering jury question by note, without presence of or notice to counsel]; Halada v. Venice Lake Park, Inc. (1955) 132 Cal.App.2d 788, 788 [court’s refusal, in note sent through bailiff without presence of or notice to counsel, to grant jury’s request for rereading of testimony was reversible error].)
Even if there had been a violation of Code of Civil Procedure section 614, Mann would not have been harmed by it. He cites an older case for the proposition that failing to adhere to the “method of communication between the court and jury” specified in section 614 is “‘deemed to be prejudicial except in very exceptional circumstances.’” (Carlson, Collins, Gordon & Bold v. Banducci, supra, 257 Cal.App.2d at p. 230.) Even if this is the correct standard of harmless error review where the judge communicates with the jury without counsel’s knowledge, however, no such communication happened in this case. The court simply failed to answer the jury’s question. There is no authority for the notion that a trial court’s failure to answer a jury’s question is reversible error per se. Here, the court’s failure was harmless under any standard for several reasons.
First, the jury wanted to ask the court about question No. 1 on the verdict form. This question read, “Did Roger Mann have a physical disability as defined by the Fair Employment and Housing Act?” The jury answered this question in the affirmative. It could not have answered that question in a way more favorable to Mann if it had received an answer to its question. There is no evidence that it wanted clarification about anything else.
Second, the apparent reason for the jury’s question had no bearing on the substance of the issue the jury had to consider in question No. 1. The verdict form asked whether Mann had a physical disability as defined in the FEHA, but the jury instructions did not mention the FEHA when they defined physical disability. It was natural, therefore, for the jurors to wonder whether they were being asked to apply some definition other than the one they had been given. They were not, and if the court had ever answered the question, its proper response would have been to refer to the definition of physical disability given in the instructions.
Finally, the jury abandoned the question after learning it would have to wait for the judge to return; it eventually found it could answer the question without assistance. This is similar to the situation in Asplund v. Driskell (1964) 225 Cal.App.2d 705, 712-713. There, the jury asked for a witness’s testimony to be read. A substitute reporter who had recorded the testimony was unavailable to read it. He was searched for, but could not be found. Other testimony the jury had requested was read. The court asked the foreperson whether the jury could then proceed without the unread testimony. The foreperson said he thought so, and the jury retired. It did not renew the request. The Court of Appeal held that there was no error because the court never refused the jury’s request. It was “clear that if the jury pressed its desire or need to hear the evidence read, the search for the missing court reporter would be continued. Ultimately, of course, he would have been located. The jury elected to abandon the request.” Here, similarly, the jury could have asked the question the next day, but found it could proceed without doing so. There was no refusal to answer the question.
B. Juror’s remark
The three juror declarations Mann obtained each contain the following statement: “Early on in the jury deliberations, juror number 4 told the other jurors that ‘Roger Mann was not going to get any of my money.’” The county obtained a declaration from juror No. 4, stating: “I am informed that [plaintiff’s counsel] has obtained declarations from several of my fellow jurors contending I made the comment early on in juror deliberations, ‘Roger Mann was not going to get any of my money.’ I did not make such a comment early in the deliberations. It is my best recollection that a statement to that effect may have been made after the verdict form was completed as one or more of the jurors commented on the outcome.”
Mann claims that this evidence establishes juror misconduct and that the trial court erred when it denied the motion he made on this basis for a new trial. We disagree.
In its order denying Mann’s motion for a new trial, the court stated:
“As to a statement of juror [No. 4] regarding ‘my money, ’ the court does not find that statement to demonstrate self-identification on the part of the juror. The timing of the statement, before or after the jury had reached its verdict, is uncertain. The court finds no indication of refusal to deliberate on her part. There is no evidence to support a claim that any such statement by juror [No. 4] had any impact for good or ill, [on] any other jurors.”
The issue of the standard of review for rulings on new-trial motions is complex. In People v. Ault (2004) 33 Cal.4th 1250, the Supreme Court discussed case law holding that, while an order granting a new trial is reviewed deferentially on appeal, an order denying a new trial is subject to independent review. (Id. at pp. 1260-1261.) In particular, independent review is important in cases where a new-trial motion based on a claim of juror bias is denied: “Courts have stressed the particular need for independent review of the trial court’s reasons for denying a new trial motion in juror bias cases. This is because the reviewing court must protect the complaining party’s right to a fully impartial jury as an ‘“inseparable and inalienable part” of the [fundamental] right to jury trial [(U.S. Const., amend. VI; Cal. Const., art. I, § 16)]. [Citations.]’ [Citations.]” (Id. at p. 1262.)
At the same time, however, the court noted—and did not disapprove—a line of cases stating that an order denying a new trial is reviewed only for an abuse of discretion. (People v. Ault, supra, 33 Cal.4th at p. 1262, fn. 7.) This may be so, for instance, where the controlling issue is whether the trial court was correct in its factual determination that no juror misconduct occurred. (Ibid. [citing Bardessono v. Michels (1970) 3 Cal.3d 780, 795].) The court also discussed the plurality opinion in People v. Nesler (1997) 16 Cal.4th 561, 582, which stated that when the trial court denies a new-trial motion that is based on a claim of juror misconduct, the appellate court accepts the trial court’s credibility determinations and findings of historical fact if supported by substantial evidence, but reviews independently the matter of whether prejudice arose from the juror’s conduct. (People v. Ault, supra, at pp. 1263-1264.)
In this case, it is undisputed that juror No. 4 made a comment about “my money, ” but there is a dispute about when she said it, whether it reflected bias, and whether prejudice arose from it. As it is not quite clear what standard of review applies to each of the several aspects of this dispute, we will assume for the sake of argument that our task is to review the ruling independently.
We agree with the trial court’s conclusion that the record does not establish misconduct. The other jurors did not claim that juror No. 4 made the comment before all the evidence was in, only that she did so during deliberations. Although jurors are discouraged from reaching definite conclusions too early in deliberations, there is no rule that they must keep their opinions secret until the last moment. It would be impossible to fashion a judicial standard controlling how much of their views they can expose to the other jurors and at what point. A juror’s statements during deliberations could reveal a failure or refusal to deliberate, but the declarations in this case do not contain any evidence that juror No. 4 failed or refused to deliberate after she made the statement. This is true even assuming, contrary to her own declaration, that she made the statement before the verdict form was completed. The statement itself does not show a failure or refusal to deliberate.
We also agree with the trial court’s finding that juror No. 4’s comment does not establish that she identified herself with the county. The statement is more plausibly viewed as a way of stating that Mann should not receive damages because he had not proved his case. The fact that the statement also conveyed a concern about a judgment for Mann coming from public funds does not change our conclusion. If juror No. 4 felt satisfaction that the public would not have to pay damages after considering the evidence and concluding that Mann did not establish liability, she was entitled to feel that way.
Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, which Mann discusses in a supplemental brief, is distinguishable. Grobeson made FEHA claims against the City of Los Angeles. The jury returned a defense verdict. (Id. at pp. 782-783.) The trial court granted Grobeson’s new-trial motion based on declarations stating that one juror said she had made up her mind during the second week of trial, while the evidence was still being presented. (Id. at pp. 783, 784.) The Court of Appeal affirmed the new-trial order. (Id. at p. 783.) Mann’s case differs from Grobeson because juror No. 4 did not declare that she prejudged the case before the evidence was in. It would be virtually impossible, by contrast, not to infer from the statement of the juror in Grobeson that the juror was biased and ignored part of the evidence.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to the County of Madera.
WE CONCUR: Cornell, J., Poochigian, J.