McMurray v. City of Burbank

Filed 3/28/06 McMurray v. City of Burbank CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE

APPEALS from an order and a judgment of the Superior Court of Los Angeles County, Edward A. Ferns, Judge. Reversed with directions.

Liebert Cassidy Whitmore, Debra L. Bray, Irma Rodriguez Moisa, Sergio Bent; Horvitz & Levy, Jason R. Litt, Julie L. Woods; Dennis A. Barlow, City Attorney, and Juli C. Scott, Chief Assistant City Attorney, for Defendant and Appellant.

Pine & Pine, Norman Pine, Beverly Tillett Pine; Law Offices of Goldberg & Gage, Bradley C. Gage; Law Offices of Stephen Love, C. Stephen Love; Law Offices of Christopher Brizzolarra and Christopher Brizzolarra for Plaintiff and Respondent.

__________________

INTRODUCTION

Defendant City of Burbank appeals from an order denying its motion for a judgment notwithstanding the verdict and its motion for a new trial, as well as from a judgment entered after a jury returned a special verdict finding defendant liable for disability discrimination and failure to provide reasonable accommodation for plaintiff Deborah McMurray's disability, but exonerating defendant of liability for age or gender discrimination, retaliation and violation of the California Family Rights Act. Defendant contends it was entitled to judgment notwithstanding the verdict, in that there is no substantial evidence of disability discrimination or failure to provide reasonable accommodation for plaintiff's disability. Defendant also challenges the admission of certain evidence and asserts that there was juror misconduct. Inasmuch as we agree that defendant was entitled to judgment notwithstanding the verdict, we reverse the judgment and direct the entry of a new judgment in favor of defendant.

FACTS^[1]

When plaintiff applied for an administrative analyst position with defendant, she completed a preemployment drug screening form dated May 1987. Plaintiff noted on the form that she was taking Tagamet due to a peptic ulcer, Xanax, Darvocet to treat headaches and Tylenol to treat minor headaches. Although the screening form does not include the information, plaintiff took Xanax for anxiety. There is no evidence that plaintiff would have been unable to perform her job duties had she not taken Xanax, that she ever told her supervisors she took Xanax to manage disabling anxiety, that her supervisors ever saw the list of medications, or that her supervisors were aware of the conditions for which physicians prescribed Xanax.

Defendant hired plaintiff in May 1987 as an administrative assistant to the community development director. Plaintiff received outstanding performance evaluations, which prompted defendant to promote plaintiff to administrative analyst in the community development department in June 1988. Plaintiff also worked as an administrative analyst in the library and management services department until 1991, at which time she transferred to the parks department. In September 1992, plaintiff's supervisor, Mary Alvord (Alvord), the director of the department, appointed plaintiff administrative officer of the parks department without opening to the public applications for the position. Plaintiff continued to receive outstanding performance evaluations.

It became clear to Alvord by June 1995, however, that although plaintiff had excellent skills which were quite valuable for budget preparation, she also had problems communicating with staff members. Plaintiff had a tendency to become unduly excitable and emotional when working under pressure and to overreact to volatile situations. Her personnel evaluations from 1995 to June 1998 stressed that she needed to work on remaining calm rather than adding to anxiety in the workplace. At no time did plaintiff disagree with these evaluations.

Plaintiff received a commendation from the Mayor in 1998. She received many other commendations as well. She also received regular salary increases. Plaintiff's qualifications and abilities led the City of Burbank to classify her as the number one candidate when she applied for a job comparable to defendant's deputy director position.

In early 1998, plaintiff told defendant's assistant finance director, Sandra Schmidt (Schmidt), that she needed help with the budget. Schmidt acknowledged that the workplace became quite hectic between January and June each year as the departments assembled their budgets. Schmidt told Alvord she was concerned because plaintiff appeared ill.^[2]

On approximately August 13, 1999, Alvord told plaintiff that several people, including two elected officials, had voiced concern about plaintiff's health. Alvord said that while the department greatly needed plaintiff's administrative work, plaintiff should not sacrifice her health for the job. Alvord recommended that plaintiff take some time off from the job. Plaintiff gently chided Alvord, saying she also worked too much.^[3]

On September 13, 1999, plaintiff's physician, Dr. Schott, placed plaintiff on a four-week medical leave which he eventually extended to six weeks. After defendant had a physician of its choice certify plaintiff's fitness, which was its routine practice after any medical leave of comparable length, she returned to work on October 25, 1999. Upon her return, plaintiff told Alvord that she was in excellent health.

After plaintiff's return to work, her coworkers and her supervisor, Alvord, repeatedly ignored her at meetings, and generally ostracized her. Some commented on her weight loss and â€