Daidone v. City of Glendale

Filed 7/11/06 Daidone v. City of Glendale CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. David M. Schacter, Judge. Affirmed.

Law Offices of Lloyd C. Ownbey, Jr., and Lloyd C. Ownbey, Jr., for Plaintiff and Appellant.

Scott H. Howard, City Attorney, Isaac Ortiz, Assistant City Attorney, Miah Yun, Deputy City Attorney, for Defendant and Respondent.

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After suffering injuries on the job as an electrical line mechanic for respondent City of Glendale (the City), appellant Phillip A. Daidone sued the City for disability discrimination, failure to accommodate, and retaliation under the Fair Employment and Housing Act (FEHA). The City prevailed in a court trial, and Daidone asserts on appeal that excessive restrictions were placed upon him and that he was not afforded reasonable accommodations for his disability. We find that substantial evidence supports the trial court's findings and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the substantial evidence standard of review discussed post, we state the facts in the manner most favorable to the judgment, resolving evidentiary conflicts in favor of the judgment. (Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381, 1383, fn. 1.)

Daidone's Injuries and Permanent Disability

At the time of trial, Daidone had been employed by the City for over 23 years. We focus on that portion of Daidone's long employment history beginning in October 1998 when he was promoted, after an 18-month apprenticeship, to the electrical line mechanic position that underlies this lawsuit. In that position, Daidone was required to engage in overhead high voltage work, pole climbing, wire stringing, heavy lifting and hanging transformers.

In December 1998, Daidone fell from a pole, hurting his right ankle and knee. In February 1999, he was injured by a piece of wood piercing his right arm while climbing a pole. Throughout 1999, he complained of discomfort in his neck and shoulders related to the exacerbation of prior injuries. Daidone also had an incident in 1999 during which his arm nearly failed while he was holding a span of wire.

As a result of these injuries and complaints, Daidone's treating physician, Dr. Ainbinder, imposed a series of work restrictions. In May 1999 Ainbinder restricted him from lifting over 25 pounds, pole climbing or prolonged overhead work. The City accommodated those restrictions by placing him in a temporary daytime troubleshooter position. In June 1999, Ainbinder continued the restrictions. The City continued to accommodate by keeping Daidone on light duty. On August 12, 1999, Ainbinder restricted Daidone from lifting over 60 pounds, lifting above shoulder level, pole climbing, and repetitive overhead work. The City accommodated those restrictions by continuing him on light duty. The August 12 restrictions were accompanied by Ainbinder's written opinion that Daidone could not return to his electrical line mechanic's position. Independently, Ainbinder also advised Daidone to look for another job with the City.

In December 1999 Daidone underwent an agreed medical evaluation by Dr. Mason Hohl. Dr. Hohl concluded in his agreed medical evaluation (AME) of January, 2000 that Daidone's condition was â€