Lee v. ThyssenKrup Elevator

Filed 1/30/07 Lee v. ThyssenKrup Elevator CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiff and appellant Dickey ODell Lee appeals from the judgment against him, following a jury verdict, and the denial of his motion for judgment notwithstanding the verdict in his action against his employer defendant and respondent ThyssenKrupp Elevator Corporation for alleged violations of the Fair Employment and Housing Act (Gov. Code,  12940 et seq.). Appellant contends there is no substantial evidence to support the jurys special verdict in favor of ThyssenKrupps health or safety defense and also that his interactive process claim was wrongfully rejected. We affirm.

Background

Appellant began working for U.S. Elevator in Oregon in 1979 and transferred to the Bay Area in 1988. ThyssenKrupp purchased U.S. Elevator in the 1990s. Appellant worked as an elevator construction mechanic installing elevators for the majority of his career prior to the events in 2001.

On July 6, 2001, while on vacation, appellant was in a motorcycle accident in Bend, Oregon. He sustained injuries including five broken ribs, a broken spleen, a cracked ankle, and a severed rotator cuff in his left shoulder. After the accident, appellant underwent two surgeries on his shoulder and two unsuccessful rounds of therapy. Appellant testified that, in the spring of 2002, his doctor informed him that he would not be able to work as an elevator installer again because his damaged rotator cuff would not allow him to do the necessary overhead work.^[1] Also in the spring of 2002, appellant informed Scott Zoetewey, a construction manager at ThyssenKrupp, of his desire to return to work.

After appellant returned to work, he performed superintendent duties, which included ensuring that jobs were ready for installation. The superintendent position was a management position and appellant received a 12-percent wage increase over his previous mechanics wage when he began to perform superintendent duties. Appellant was demoted from his superintendent position in September or October 2002, after six months of working in that position. Appellant testified that Zoetewey told him theres got to be a change. Zoetewey testified that the company needed to reduce the number of superintendents. He also stated that since appellant was the last one to be placed in that position he was the first to be demoted as well.

Appellant began working as a service mechanic in October 2002 and performed individual jobs assigned to him. In December, appellant met with Darrel Graham, a manager with ThyssenKrupp. Appellant testified that Graham told him to take the time to attempt a third surgery for his shoulder injury and ThyssenKrupp would have a job ready for appellant when he returned. Graham, on the other hand, testified he met with appellant in order to terminate his job. December 11, 2002, was appellants last day of work at ThyssenKrupp.

In the months that followed, appellant had another surgery on his left shoulder and arthroscopic surgery on his right shoulder. After four months of recovery, appellant left messages with Graham saying he wanted to return to work once again. Graham sent a letter to appellant on August 8, 2003, stating: [S]ince your layoff on December 11, 2002 we have been forced to reduce our manpower even more due to the present economys conditions. At the present time we do not have any employment opportunities in our construction, repair, or service departments. Appellant had no further contact with Graham or ThyssenKrupp, after he received this letter. Appellant filed a complaint against ThyssenKrupp for unlawful employment discrimination and termination in January 2004 and a jury trial followed.

After presentation of the evidence, the jury was instructed on, among other things, the various elements of a disability discrimination claim, the definition of a reasonable accommodation, and two affirmative defenses. On the affirmative defense for a health or safety risk, the jury was instructed: ThyssenKrupp claims that its conduct was lawful because, even with reasonable accommodations, [appellant] was unable to perform an essential job duty without endangering his health or safety or the health or safety of others. To succeed, ThyssenKrupp must prove both of the following: [] (1) That climbing vertical ladders, working on elevator cartops, performing overhead work, lifting heavy objects, and/or entering and exiting elevator pits and hoistways, was an essential job duty, and [] (2) That even with reasonable accommodations, [appellant] would not climb vertical ladders, work on elevator cartops, perform overhead work, lift heavy objects, and/or enter and exit elevator pits and hoistways without endangering his health or safety or the health or safety of others more than if an individual without the disability performed the job duty. In determining whether [appellants] performance of the job duty would endanger his health or safety, you must decide whether the performance of the job duty presents an immediate and substantial degree of risk to him. [] In deciding whether a job duty is essential, you may consider, among other factors, the following: [] (a) Whether the reason the job exists is to perform that duty; [] (b) The number of employees available who can perform that duty; and [] (c) Whether the job duty is highly specialized.

The jury answered yes to the following three questions on special verdict form No. 1: (1) Did ThyssenKrupp demote [appellant], or discharge [appellant] , or refuse to reinstate [appellant]? [] (2) Was [appellants] status as a disabled employee a motivating reason for ThyssenKrupps demotion of [appellant], or discharge of [appellant], or refusal to reinstate [appellant]? [] (3) Was ThyssenKrupps demotion or discharge or refusal to reinstate [appellant] a substantial factor in causing harm to [appellant]?

However, the jury answered no to the following question on special verdict form No. 3: (16) Was [appellant] able to perform his essential job duties even with reasonable accommodations in a manner that would not endanger his health or safety more than if an individual without a disability performed the job duty? This finding reflected the jurys acceptance of ThyssenKrupps affirmative defense, and appellant filed a motion for judgment notwithstanding the verdict on the grounds that there was no substantial evidence to support the finding. The trial court denied the motion and entered judgment pursuant to the jury verdict in favor of ThyssenKrupp. Appellant appeals from both the judgment and the denial of the motion for judgment notwithstanding the verdict.

Discussion

I. Standard of Review.

In reviewing the denial of a motion for judgment notwithstanding the verdict and a judgment, we determine whether any substantial evidence, contradicted or uncontradicted, supports the jurys conclusion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489; Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) We must review the entire record in the light most favorable to the judgment below and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Rivera (2003) 109 Cal.App.4th 1241, 1244.)   [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.   (Piedra, at p. 1489, italics omitted.)

II. Government Code Section 12940.

In relevant part, Government Code section 12940 makes it unlawful for an employer to take or refuse to take certain employment actions because of an employees physical disability.^[2] In special verdict No. 1, the jury found that ThyssenKrupp had discharged, demoted or refused to reinstate appellant as a result of his disability, an unlawful employment practice. However, section 12940, subdivision (a)(1) states: This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, where the employee, because of his or her physical or mental disability, 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. Courts have explained that the health or safety defense must be tailored to the individual characteristics of each applicant [citation] in relation to specific, legitimate job requirements. (Sterling Transit Co. v. Fair Employment Practice Com. (1981) 121 Cal.App.3d 791, 798.) In its special verdict form No. 3, the jury found that even with reasonable accommodations, appellant was unable to perform his duties in a manner that would not endanger the health or safety of appellant or others, a complete defense.

III. Substantial Evidence Supports the Jurys Finding of the Health or Safety Defense.

[W]here a party to a civil lawsuit claims a jury verdict is not supported by the evidence, but asserts no error in the jury instructions, the adequacy of the evidence must be measured against the instructions given the jury.^[3] (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535.) We review the record for substantial evidence to support the jurys finding in the special verdict first regarding proof of essential duties and second regarding the health or safety risks of performing those duties.

A. There Was Substantial Evidence That Climbing Vertical Ladders, Working on Elevator Car Tops, Performing Overhead Work, Lifting Heavy Objects, and/or Entering and Exiting Elevator Pits and Hoist Ways, Was an Essential Job Duty.

On appeal, appellant challenges the existence of substantial evidence to support the health and safety defense as applied to the superintendent position and the service mechanic position, the two types of work appellant performed after his 2001 accident and subsequent surgeries. Appellant does not challenge the applicability of the health and safety defense to his original position of elevator installer, which he testified he was no longer capable of performing.

We need not find substantial evidence that all five job duties listed were essential. The jury instructions state that ThyssenKrupp needed to prove that climbing vertical ladders, working on elevator car tops, performing overhead work, lifting heavy objects, and/or entering and exiting elevator pits and hoist ways, were essential job duties. Thus, it is sufficient if substantial evidence supports the finding that any of these duties was essential. Graham, a service superintendent and service operations manager at ThyssenKrupp, testified that as a service mechanic, accessing ladders on an elevator pit is part of your routine. He did not know of any layouts that did not require a service mechanic to access and climb vertical ladders. Richard Gibson, a ThyssenKrupp employee who served as a service manager for a year, also testified that he was not aware of any service routes without pits or vertical ladders. Through Anne Garrett, a human resources manager for ThyssenKrupp, a defense exhibit that describes the physical requirements of a service mechanics job, was introduced. This document provides: When doing this job, the employee is working from the top of an elevator, underneath an elevator and must climb ladders to gain access to the elevator pit . . . . The document also lists Other Essential Aspects and Demands of Job Not Listed, which includes Working above shoulders. Finally, appellant testified that a service mechanics job was to take care of elevators that [are] on your route. In explaining the physical requirements of the job, appellant testified, Youd have to get on top of elevators. Youd have to get under elevators. He stated that the service men are mostly alone on the job. However, sometimes, a job would require two service people and one man would get down in a pit . . . while another man may be on top of the elevator . . . . He also agreed that, service mechanics have to work above their shoulders.

This provides substantial evidence that the service mechanics job not only included these duties, but that the duties were essential to the position. For example, as set forth above, climbing vertical ladders into an elevator pit was described as being part of the routine and there were apparently few, if any routes without pits or ladders. Based on these observations, the jury reasonably could have inferred that one of the primary reasons the service job exists is to climb into the pit or on top of the elevator in order to identify or fix a problem. Also, after hearing that most service mechanics work alone, the jury properly could have concluded that there were no other employees on site to take over or help with these duties. Even when two service mechanics were necessary, there were two functions to be performed and thus it would be essential that each mechanic perform his or her role.

Having concluded that substantial evidence supports a jury finding that these duties were essential to the service mechanic position, we are not required to further review whether these duties were also essential to the superintendent position.

Special verdict form No. 1 was phrased in the alternative, and the jury could have found that ThyssenKrupp demoted, or discharged, or refused to reinstate appellant; that the disability was a motivating reason for this demotion, or discharge, or refusal to reinstate; and that the demotion or discharge or refusal to reinstate was a substantial factor in causing appellant harm. The special verdict form did not require the jury to specify which unlawful employment practice it found. Because appellant did not complain about this lack of specificity below, he may not complain about it on appeal. (Conservatorship of Gregory, supra, 80 Cal.App.4th at p. 520-521, quoting 7 Witkin, Cal. Procedure (4th ed. 1997) Trial,  272, pp. 318-319.) And, it would undermine our obligation to make every reasonable presumption in support of the verdict (People v. Rivera, supra, 109 Cal.App.4th at p. 1244) if we examined every possible interpretation of the verdict for a basis to reverse.

B. There Was Substantial Evidence That Even with Reasonable Accommodations, Appellant Could Not Climb Vertical Ladders, Work on Elevator Car Tops, Perform Overhead Work, Lift Heavy Objects, and/or Enter and Exit Elevator Pits and Hoist Ways Without Endangering His Health or Safety More Than if an Individual Without the Disability Performed the Job Duty.

Having found that substantial evidence supported the jurys conclusion that climbing vertical ladders, working on elevator car tops, and accessing elevator pits were essential job duties, we further conclude that substantial evidence supported the jurys finding that even with reasonable accommodations, appellant was not able to perform his essential job duties in a manner that would not endanger his health or safety more than if an individual without a disability performed the duty.

When describing his shoulder following surgery, appellant testified, It was mush, [it] was useless. In appellants deposition testimony that was read to the jury, appellant explained: The weakness of the arm . . . I cant pick it up. It wont operate. It wont lift. It doesnt hold anymore. He admitted that his left arm would become so weak doing service work that he could not even pick it up. Appellant agreed that his physical limitations were essentially the same in October 2004 as they were in 2002. Robert Cottle, appellants vocational rehabilitation counselor noted that appellant was precluded from all but occasional light use of the left upper extremity, above shoulder level.

Substantial evidence demonstrated the risks created by this disability. On cross-examination, appellant agreed that if a service mechanic was standing on top of an elevator and there was an unexpected movement, he would have to grab something to save himself from injury. Gibson testified that mechanics face significant fall and tripping hazards on car tops. Graham testified, If you cannot use your arm and you are working around high speed equipment on car tops, its a safety concern. Graham explained that when going up or down the ladders, or onto the car top, you have to be able to hold on and keep from falling. When discussing the fall risk to service employees in general, Graham noted that, [I]f they have the body strength to hold themselves and take care of themselves, there should not be a problem. However, Graham testified that appellant told him that if he was put in a position that he had to grab something to keep from falling, he could not do it. The jury also heard deposition testimony from Dr. John Devor stating that appellant couldnt climb a ladder in the shaft or a ladder in the car or pull himself up. He went on to explain that appellant would have trouble catching himself from falling and might have a 50/50 chance of being able to reach out and hold on and save himself. The doctor also explained the overall difficulty with climbing vertical ladders: [T]hey are straight up and down. . . . Gravity is trying to pull your weight off of that ladder much more than it is if you are on a ladder thats inclined or on stairs that are inclined because then gravity is actually pushing you against the ladder. . . . [Y]oure using hands at head level, sometimes greater, but usually above shoulder level to sort of help stabilize yourself and pull yourself up.

This testimony constitutes substantial evidence that not only was appellants shoulder incapacitated in a way that would directly affect his ability to climb vertical ladders, work on car tops, or access elevator pits, but the disability presented an imminent and substantial degree of risk to him and to others as a result of appellant losing his balance and falling. (Cal. Code Regs., tit. 2,  7293.8, subd. (e).)^[4] This was not a vague, latent medical problem that could potentially surface someday in the future. Instead, the safety risk to appellant would exist every time he was on an elevator car top or had to climb down a vertical pit ladder. Also, the evidence supports the inference that the risk to appellant would be greater than for a person with normal arm function.

Substantial evidence also demonstrated that appellant faced these risks even with reasonable accommodations. Lawrence Deneen, ThyssenKrupps vocational rehabilitation expert reviewed appellants health care records, deposition testimony, and various employment affidavits and testified that in his opinion, there were no practical, reasonable accommodations that would permit appellant to perform his job safely. Deneen stated that he did not see any way the job could be modified, and the required duties were incompatible with the limitations of appellants upper left extremity. Graham testified that a safety harness should not be worn by service employees because, in normal service work, wearing a harness actually increases risks to employees since the safety tie line of the harness creates a danger with moving elevator parts. As for other accommodations, appellant testified that he never asked for any accommodations to perform his duties.

IV. The Trial Court Did Not Err in Entering Judgment Against Appellant on his Interactive Process Claim.

Section 12940, subdivision (n) provides: It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [] . . . [] (n) For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. The statute provides an independent basis for liability. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61.)

Here, the jury was asked on special verdict form No. 2, (9) Did [appellant] make a request for reasonable accommodation of his disability? The jury answered no to this question. As the statute clearly states, it is unlawful for an employer to fail to engage in an interactive process to determine a reasonable accommodation in response to arequest for reasonable accommodations by the employee. The jury found appellant had not requested a reasonable accommodation and, so, section 12940, subdivision (n) was not triggered. This finding was supported by substantial evidence: appellant testified he had never requested accommodations from ThyssenKrupp for either the service position or the superintendent position. Thus, judgment against appellant on this claim was proper.

Disposition

The judgment is affirmed.

SIMONS, J.

We concur.

JONES, P. J.

MILLER, J.^*

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^[1] Appellant also applied for workers compensation benefits because he said his doctor informed him that his shoulders were also damaged from work.

^[2] All undesignated section references are to the Government Code.

Section 12940, subdivision (a) provides: It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California: [] (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

^[3] In his opening brief appellant states that the jury was confused by the non-specific wording of special verdict form No. 3; however, appellant made no objections to the jury instructions or special verdicts at trial. Where  the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.  (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520, quoting 7 Witkin, Cal. Procedure (4th ed. 1997) Trial,  272, pp. 318-319, italics omitted.) Appellant, therefore, has waived the issue on appeal. (Conservatorship of Gregory, at pp. 520-521.)

^[4] California Code of Regulations, title 2, section 7293.8, subdivision (e), provides in pertinent part: [I]t is no defense to assert that an individual with a disability has a condition . . . with a future risk, so long as the condition . . . does not presently interfere with his or her ability to perform the job in a manner that will not immediately endanger the individual with a disability or others, and the individual is able to safely perform the job over a reasonable length of time. A reasonable length of time is to be determined on an individual basis.

^* Judge of the San Francisco County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.