Shirvanyan v. Los Angeles Community College etc. CA2/1 ( 2020 )

Filed 11/30/20 Shirvanyan v. Los Angeles Community College etc. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ANAHIT SHIRVANYAN, B296593, B297419
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC633224)
v.
LOS ANGELES COMMUNITY
COLLEGE DISTRICT,
Defendant and Appellant.
APPEALS from the judgment and an order of the Superior
Court of Los Angeles County, Stephanie M. Bowick, Judge.
Reversed with directions.
Carlson & Messer, Charles R. Messer; Greines, Martin,
Stein & Richland and Robert A. Olson for Defendant and
Appellant.
Shegerian & Associates, Carney R. Shegerian and Jill
McDonell for Plaintiff and Respondent.
Defendant Los Angeles Community College District (the
District) appeals from a judgment following a jury verdict in
favor of plaintiff Anahit Shirvanyan, a former employee of
the District, on her Fair Employment and Housing Act (FEHA)
claims against it. These claims were based on the District’s
alleged failure to provide reasonable accommodations for
and/or engage in an interactive process to identify reasonable
accommodations for two injuries, each of which was sufficient
to render Shirvanyan disabled for the purposes of FEHA.
Shirvanyan offered evidence regarding the District’s response
to both injuries—a wrist condition that began sometime in 2014,
and a shoulder injury that occurred in December 2015—but she
did not, either in her complaint or the evidence she presented,
differentiate between them as bases for liability.
The District argues that a necessary element of a FEHA
interactive process claim under Government Code1 section 12940,
subdivision (n) is the availability of a reasonable accommodation
at the time an interactive process should have taken place, such
that engaging in the process would not have been futile. We
agree with the District that a section 12940, subdivision (n)
plaintiff must prove an available reasonable accommodation.
We further conclude that the evidence presented is
sufficient to establish only that a reasonable accommodation of
Shirvanyan’s wrist injury, not her shoulder injury, was available.
The jury did not indicate whether it relied on the District’s
response to one or both of these disabilities in reaching its
verdict, and the record does not permit us to make such a
1 Unless otherwise indicated, all further unspecified
statutory references are to the Government Code.
2
determination. We therefore reverse with instructions that
the trial court conduct a new trial on Shirvanyan’s failure to
accommodate and interactive process claims based solely on
the District’s handling of Shirvanyan’s wrist injury. We further
conclude, in response to the District’s second primary argument
on appeal, that the Workers’ Compensation Act (Lab. Code,
§ 3200 et seq.) (the WCA) does not bar such claims, as they seek
recovery for a harm that is distinct from the harms for which the
Workers’ Compensation Act provides a remedy.
The District also appeals from the order granting
Shirvanyan attorney fees, which we also reverse. To the extent
Shirvanyan prevails on the limited retrial set forth below, the
court must reassess whether and to what extent she is entitled
to attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
A. FEHA Concepts of Reasonable Accommodation
and the Interactive Process
To assist in understanding the factual and procedural
background of this matter, we provide an initial overview of some
of the FEHA concepts involved in the litigation below. FEHA
identifies several “unlawful employment practice[s].” (§ 12940.)
Through these definitions, FEHA seeks to assure “those
employees with a disability who can perform the essential duties
of the employment position with reasonable accommodation”
have the opportunity to do so and are not discriminated against
based on their disability. (Green v. State of California (2007)
42 Cal.4th 254, 264 (Green).) A “reasonable accommodation” is
“ ‘ a modification or adjustment to the workplace that enables
the employee to perform the essential functions of the job
3
held or desired.’ ” (Furtado v. State Personnel Bd. (2013) 212
Cal.App.4th 729, 745 (italics omitted), quoting Nadaf–Rahrov v.
Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 974
(Nadaf–Rahrov).) A reasonable accommodation may include
“[j]ob restructuring, part-time or modified work schedules, [or]
reassignment to a vacant position.” (§ 12926, subd. (p)(2).) “A
finite leave of absence [also] may be a reasonable accommodation
to allow an employee time to recover.” (Nealy v. City of Santa
Monica (2015) 234 Cal.App.4th 359, 377–378 (Nealy).)
FEHA imposes an “affirmative duty” (Soria v. Univision
Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598, quoting
Cal. Code Regs., tit. 2, § 11068, subd. (a)) on employers “to
make [a] reasonable accommodation for the known disability of
an employee unless doing so would produce undue hardship to
the employer’s operation.” (Nealy, supra, 234 Cal.App.4th at
p. 373, citing § 12940, subd. (m).) Because the normal course of
an employee’s job may not make her aware of all available and
effective reasonable accommodations, FEHA also requires that
“in response to a request for reasonable accommodation by an
employee or applicant with a known physical or mental disability
or known medical condition,” an employer “engage in a timely,
good faith, interactive process with the employee or applicant
to determine effective reasonable accommodations, if any.”
(§ 12940, subd. (n).) An employer’s failure to make a reasonable
accommodation for an employee with a known disability—
regardless of whether an employer has engaged in the interactive
process or not (see Nadaf-Rahrov, supra, 166 Cal.App.4th at
p. 984)—is unlawful (§ 12940, subd. (m)(1)), and the disabled
employee may sue to recover harm suffered as a result. An
employer’s failure to engage in the interactive process that causes
4
harm to a disabled employee or former employee is also
independently actionable. (Swanson v. Morongo Unified School
Dist. (2014) 232 Cal.App.4th 954, 971.) For the purposes of a
FEHA claim, the cause of an employee’s disability is irrelevant;
the focus is on the employer’s efforts to reasonably accommodate
the disability, regardless of its cause.
We discuss these concepts in greater detail in our analysis
below.
B. Factual Background2
1. Shirvanyan’s employment at the child
development center
The Child Development Center (the center) at Los Angeles
Valley College, a part of the District, employed Shirvanyan for
approximately eight years, beginning in 2007. The District has
three classifications for its employees—classified, unclassified,
and academic. At the center, unclassified assistants may be
assigned to roles in the kitchen, yard, or classroom. Shirvanyan
was a level three unclassified assistant employee assigned to
the kitchen. Her personnel record lists her job title as “Kitchen
2 We review sufficiency of the evidence issues raised on
appeal for substantial evidence. (See Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 (Western States
Petroleum) [“when a [finding] is attacked as being unsupported,
the power of the appellate court begins and ends with a
determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the
[finding]”].) As such, we must consider the evidence in the light
most favorable to the challenged verdict, and resolve all conflicts
of evidence in Shirvanyan’s favor. (See ibid.)
5
Coordinator,” and in her complaint identifies her position as
“kitchen worker.” When employed at the center, Shirvanyan
was the only unclassified assistant assigned exclusively to the
kitchen.
While working at the center, Shirvanyan prepared
breakfast and lunch (e.g., washed and cut fruit, opened large
heavy cans, poured cereal), brought meals in large bowls and
milk/juice to classrooms using a large cart, retrieved and
cleaned dishes, washed five-pound pots, did laundry, and
cleaned the kitchen. Shirvanyan’s “essential job functions”
included “repetitive use of her hands to cut foods, load[ing]
and unload[ing] the dishwasher, and hand wash[ing] large
and heavy pots and pans” and required “prolonged standing,
repetitive bending, repetitive lifting, repetitive pulling,
repetitive pushing, repetitive use of her hands” and the ability
“to lift up to about 50 pounds.”
2. Shirvanyan’s carpal tunnel syndrome
and resulting difficulties at work
In 2014, Shirvanyan was diagnosed with nerve damage
and carpal tunnel in her arm and wrist. She began wearing
a brace daily and needed help in the kitchen because of her
injuries. Also in 2014, Shirvanyan reduced her hours due to
pain. In May 2015, Shirvanyan consulted her primary care
physician, Dr. Armine Nazaryan, about the pain in her wrist.
Dr. Nazaryan diagnosed her with “moderate to severe right
carpal tunnel syndrome” of the “right upper extremity”
with “pain, numbness and weakness in her right hand.” It
is undisputed that carpal tunnel syndrome is a recognized
disability under FEHA. Dr. Nazaryan prescribed wrist support
and physical therapy.
6
Shirvanyan told her supervisors about her carpal tunnel
syndrome and wrist pain. She frequently asked coworkers for
help with more strenuous tasks, such as lifting heavy pots or
moving large bags of fruit. Her coworkers were sometimes able
to assist her. Shirvanyan also began participating in physical
therapy, which somewhat improved her condition. Nevertheless,
Shirvanyan was often in tears by the end of her shift due to the
pain, complained of pain daily to her coworkers, and winced or
favored one arm while completing her job duties.
Although not identifying them as such, Shirvanyan
requested various accommodations for her wrist conditions
at various times. She repeatedly asked her supervisors for
additional help in the kitchen, which she did not receive.
She requested an electric can opener, but she was denied that
request. When the large industrial dishwasher broke, she asked
for assistance hand washing dishes, or to be allowed to use
paper plates, and was again denied. Shirvanyan also asked her
supervisor whether she could help teachers supervise children
instead of working in the kitchen, and was informed that she
did not have the required skills for such work.
Testimony of the District’s employees at trial reflected
their lack of understanding of both the District’s policies
regarding reasonable accommodation and the obligations FEHA
imposes on an employer, once the employer becomes aware of
an employee’s disability. Although Shirvanyan’s supervisors
were aware of Shirvanyan’s carpal tunnel syndrome and her
difficulties performing her job, they never discussed changing
Shirvanyan’s kitchen duties or giving Shirvanyan time off to
address the injury in her wrist.
7
3. Shirvanyan’s shoulder injury and
cessation of work at the center
On December 18, 2015, Shirvanyan injured herself when
opening the door of a heavy industrial dishwasher and left her
shift early due to the resulting pain. She saw Dr. Nazaryan,
complaining of pain that prevented Shirvanyan from moving
her right arm, shoulder, and neck. Based on this appointment,
Dr. Nazaryan provided Shirvanyan with a medical release
form stating that Shirvanyan could not return to work until
March 7, 2016. Dr. Nazaryan chose this length of time based
on her “experience [that] this is the average time needed at
least for even partial recovery of nerve injury or nerve problem.”
Dr. Nazaryan wrote no further medical release notes for
Shirvanyan.
In early January 2016, Shirvanyan’s daughter delivered
the medical release form to the center, dropping it off at the
sheriff ’s station as instructed by the center’s staff. Shirvanyan’s
supervisor received the form. Shirvanyan never returned to work
after leaving the day of her shoulder injury, nor did she provide
any additional medical leave forms or requests to the center
extending the length of her desired leave beyond March 7, 2016.
Resolving all conflicts in the evidence in Shirvanyan’s
favor, no one at the center contacted Shirvanyan or her
daughter (who often served as a translator for Shirvanyan in
communications with the center) about whether, when, or under
what conditions Shirvanyan would be returning to work after
her shoulder injury.3 There is no information in the record
3 The District offered testimony from one of its employees
that he had reached out to Shirvanyan’s daughter following
8
suggesting that Shirvanyan was fired, or that anyone at
the center instructed or encouraged her not to return to work
following her shoulder injury.4 According to her daughter,
however, Shirvanyan also never mentioned returning to work
at the center after leaving in December 2015. The center’s
interrogatory responses indicate that Shirvanyan stopped being
employed at the center “approximately at the end of 2015,” which
is consistent with the last time she performed work there, but
the response does not indicate why her employment ended.
Shirvanyan’s shoulder injury to let her know the center would
hold Shirvanyan’s job open for her while she recovered, and that
Shirvanyan’s daughter indicated Shirvanyan did not intend to
return to work. Shirvanyan’s daughter, however, testified that
no one from the District contacted her following the shoulder
injury, and Shirvanyan likewise testified to never having heard
from her employer after she left work early on December 18,
2015. Because we resolve all conflicts in the evidence in
Shirvanyan’s favor, for purposes of this appeal, we must and
do accept Shirvanyan’s version of these facts. (See Crawford v.
Southern Pac. Co. (1935) 3 Cal.2d 427, 429 [in reviewing for
substantial evidence, “[w]hen two or more inferences can be
reasonably deduced from the facts, the reviewing court is without
power to substitute its deductions for those of the trial court”].)
4 Approximately four months before Shirvanyan’s shoulder
injury and resulting cessation of work, Shirvanyan’s former
supervisor—who had recently retired—saw Shirvanyan in the
hallway, and when Shirvanyan complained of pain, the former
supervisor stated she was herself retired and stated “you could
retire, too.” Shirvanyan does not argue, nor would the record
support, that she understood this comment from a former
supervisor four months before she hurt her shoulder and left
work as an instruction not to return to work following the
expiration of her medical leave note in March 2016.
9
4. Shirvanyan’s condition following her
cessation of work at the center
Both parties acknowledge in their respective briefing on
appeal that Shirvanyan made a workers’ compensation claim
following her December 2015 shoulder injury, although no
evidence regarding the claim was permitted at trial, and thus no
details about the claim are included in the record. In connection
with this claim, Shirvanyan began seeing physician Dr. Emmett
Berg on January 14, 2016. Dr. Berg initially diagnosed
Shirvanyan with severe carpal tunnel syndrome of the right
extremity, cervical sprain, epicondylitis of the right elbow, and
shoulder tendinitis in the right shoulder. Based on additional
diagnostics thereafter, Dr. Berg supplemented his diagnosis to
include “severe pathology in the shoulder . . . including findings
of a completely torn [right] supraspinatus tendon, which is
one of the four rotator cuff muscles in the shoulder,” as well as
“multilevel degenerative disc disease of the cervical spine.” The
“major complaint for which [Dr. Berg] was seeing Shirvanyan”
was the torn rotator cuff in her shoulder.
Dr. Berg’s treatment of Shirvanyan was still ongoing at the
time of trial in 2018. At that time, Dr. Berg was still instructing
Shirvanyan not to return to work. Nothing in the record suggests
that Berg provided Shirvanyan with a medical leave note or
that Dr. Berg or Shirvanyan otherwise communicated Dr. Berg’s
instructions to the center. Also as of the time of trial, Shirvanyan
still had significantly limited mobility in her right arm/hand, and
used her left hand to brush her teeth, shower and to put on shoes.
Shirvanyan’s daughter testified to the differences in
her mother’s emotional state following her cessation of work at
the center. Specifically, her daughter noted that “[b]efore when
10
[Shirvanyan] would work [at the center], even though she was
in a lot of pain, she was happy. She would go to work, but now
she is just really sad, depressed. She feels like she wasn’t treated
fairly, and so that’s all causing her emotional and mental—like,
she is just hurt from all of that.”
Dr. Anthony Reading, a psychological expert, opined based
on his review of Shirvanyan’s medical records and an extended
face-to-face interview of Shirvanyan in October 2018, that she
suffered from moderate to severe major depressive disorder.
Dr. Reading explained that Shirvanyan’s “perception that the
college wasn’t helping her” had “an aggravating impact” on her
pain, and that her work at the center had given her a sense of
self-worth which had helped offset her pain. Dr. Reading further
opined that, if Shirvanyan had been “helped by the college,
that would [have been] a positive and the removal of a negative.
And even if she stopped working, there wouldn’t [have been]
the sense of feeling injured arising from the . . . college’s failure.
So that would alter her mental landscape in a very significant
way.” “[T]he fact that . . . Shirvanyan thought that [her]
[shoulder] injury was avoidable” “increase[d] the severity
of her depression and her pain. The sense that something is
avoidable . . . is an aggravating factor.” When asked his opinion
as to whether Shirvanyan’s perception of being treated unfairly
and “experiences at her work at the college led to any sort
of depressive disorder,” he explained: “[I]t’s an unfortunate
confluence of events, that she developed pain while working and
claimed to have reported that, requested assistance. None was
forthcoming, according to . . . Shirvanyan. And over time, her
pain became more pronounced, ultimately leading to her being
taken off work and not returning. And she maintained that
11
once she lost her job, her depression set in and her pain become
worse.”
Dr. Reading further testified that, in terms of a prognosis,
“with aggressive treatment, the best I think there can be
hope for at this point is a partial remission” meaning “she’ll be
encumbered with at least a partial depression for the rest of her
life.”
C. Procedural Background
1. Shirvanyan’s complaint
Shirvanyan sued the District, alleging three causes of
action under FEHA: (1) disability discrimination; (2) failure
to engage in the interactive process; and (3) failure to provide
a reasonable accommodation. Shirvanyan’s theory of the case
was that, as a result of these violations, she developed major
depressive disorder, resulting in both emotional distress and
economic loss in the form of lost wages beginning April 1, 2016.
The case ultimately proceeded to a jury trial.
2. Shirvanyan’s motion in limine regarding
workers’ compensation evidence
At trial, Shirvanyan clarified that she was not seeking
any damages for physical pain or medical bills from on-the-job
injuries. Rather, her theory was that the center’s failure to
treat her in the manner FEHA requires—not her injuries or her
cessation of work—caused her depression. Shirvanyan moved
to preclude any evidence of her receipt of workers’ compensation
benefits based on Shirvanyan’s shoulder injury, as well as any
reference to her workers’ compensation lawsuit. The court
granted the motion, deeming such evidence to be unduly
prejudicial and without probative value. Shirvanyan proceeded
12
to trial claiming only emotional distress damages and lost wages
due to her emotional distress/depression.
3. Motion for nonsuit and jury instructions
regarding availability of reasonable
accommodation
At the close of Shirvanyan’s case-in-chief, the District
moved for nonsuit, arguing that Shirvanyan failed to prove
a key element of her claims—that there was an available and
effective reasonable accommodation that could have been made
at the times Shirvanyan alleged the District failed to engage in
the interactive process. The court rejected the District’s motion,
based on its view that the availability of a reasonable
accommodation is not an element of an interactive process claim.
Based on this same logic, the trial court rejected the
following special instruction proffered by the District on this
point: “Reasonable Accommodation Available. [¶] To prove
her claim that [the] District failed to engage in the interactive
process, [p]laintiff must identify a reasonable accommodation
that would have been available at the time the interactive
process should have started.” The trial court reasoned that
it did not matter whether a reasonable accommodation “was
available at the time of the interactive process, because there
was no interactive process,” and so it “cannot be known whether
an alternative job would have been found.”
The trial court instead instructed the jury using the jointly
proposed instruction CACI No. 2546, which does not expressly
require the jury to find that a reasonable accommodation was
available. Rather, it required Shirvanyan prove: (1) “[t]hat . . .
Shirvanyan had a physical disability that was known to
[the] District”; (2) “[t]hat . . . Shirvanyan requested that [the]
13
District make [a] reasonable accommodation for her physical
disability so that she would be able to perform essential job
requirements”; (3) “[t]hat . . . Shirvanyan was willing to
participate in an interactive process to determine whether
reasonable accommodation could be made so that she would be
able to perform the essential job requirements”; (4) “[t]hat [the]
District failed to participate in a timely good-faith interactive
process with . . . Shirvanyan to determine whether reasonable
accommodation could be made”; (5) “[t]hat . . . Shirvanyan
was harmed”; and (6) “[t]hat [the] District’s failure to engage
in a good-faith interactive process was a substantial factor in
causing . . . Shirvanyan’s harm.”
The jury was also instructed on the elements of
Shirvanyan’s reasonable accommodation claim using the
jointly proposed instruction CACI No. 2541, which listed
the following elements: (1) “[t]hat . . . Shirvanyan had a
physical disability”; (2) “[t]hat [the] District knew of . . .
Shirvanyan’s physical disability”; (3) “[t]hat . . . Shirvanyan
was able to perform the essential job duties with reasonable
accommodation for her physical disability”; (4) “[t]hat [the]
District failed to provide reasonable accommodation for . . .
Shirvanyan’s physical disability”; (5) “[t]hat . . . Shirvanyan
was harmed”; and (6) “[t]hat [the] District’s failure to provide
[a] reasonable accommodation was a substantial factor in
causing . . . Shirvanyan’s harm.”
14
4. The jury verdict
In the agreed-upon general verdict form, the jury rejected
Shirvanyan’s disability discrimination claim but found in her
favor on her reasonable accommodation and interactive process
claims. The jury awarded $124,670 in past and future economic
damages and $2,775,000 in noneconomic damages (comprised
of $1,400,000 for past noneconomic damages and $1,375,000
for future noneconomic damages), for a total of $2,899,670. The
economic damages figures are consistent with the testimony of
Shirvanyan’s economic damages expert, who used a time frame
from April 1, 2016 to December 3, 2018, the date of Shirvanyan’s
likely retirement, and assumed Shirvanyan would be
permanently unable to work.
5. The district’s motion for judgment
notwithstanding the verdict or new trial
The District moved for a judgment notwithstanding the
verdict on several grounds, two of which form the basis for
the District’s arguments in the instant appeal.5 First, the
District argued that the evidence presented did not support the
availability of a reasonable accommodation during the relevant
time frame. The trial court rejected this argument, based on its
view that the availability of a reasonable accommodation is not
an element of an interactive process claim. Second, the District
5 The District’s motion also raised arguments that
there was insufficient evidence to support that Shirvanyan’s
claimed injuries resulted from the FEHA violations, as opposed
to Shirvanyan’s cessation of work, and that the amount of
emotional distress damages were excessive and unsupported
by the evidence. The court likewise rejected these arguments.
15
argued Shirvanyan’s claimed damages arose from injuries at
work, and were thus recoverable exclusively through the workers’
compensation law, given that law’s exclusivity provisions. (Lab.
Code, § 3600, subd. (a) [“[l]iability for the compensation provided
by this division” is “in lieu of any other liability whatsoever
to any person”].) The court concluded that Shirvanyan had
presented sufficient evidence that her damages arose not from
her physical injuries, but from the District’s failure to engage
in the interactive process and failure to provide a reasonable
accommodation. The court denied the motion, and judgment
was entered on January 25, 2019.
The District appealed from the judgment and, separately,
from a postjudgment order awarding Shirvanyan $503,273.50
in attorney fees pursuant to section 12965, subdivision (b). We
consolidated the two appeals for all purposes.
DISCUSSION
A. Arguments Related to the Availability of
a Reasonable Accommodation
On appeal, the District argues that the availability
of a reasonable accommodation is an essential element of
an interactive process claim, that the trial court committed
reversible error in denying a jury instruction to this effect, and
that the evidence does not support a finding that a reasonable
accommodation was available. For reasons we discuss below,
we agree with the District as to the law and agree in part
as to the sufficiency of the evidence.
16
1. Availability of a reasonable
accommodation is an element of
an interactive process claim
Well-reasoned precedent supports the District’s argument
that, in order to succeed on a cause of action for failure to
engage in an interactive process, “an employee must identify a
reasonable accommodation that would have been available at the
time the interactive process should have occurred.” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1018 (Scotch);
Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 981 [“section 12940[,
subdivision] (n) imposes liability only if a reasonable
accommodation was possible”].)
Shirvanyan argues that “authority is split” on this point,
relying primarily on Wysinger v. Automobile Club of Southern
California (2007) 157 Cal.App.4th 413 (Wysinger), and Claudio v.
Regents of University of California (2005) 134 Cal.App.4th 224,
as well as the CACI No. 2546 use instructions that these cases
create such a split.
But these cases can be “synthesize[d]” with cases requiring
an available accommodation to support liability, as set forth
in the thorough discussion of this issue in Scotch, supra,
173 Cal.App.4th at p. 1018. In Scotch, the Fourth Appellate
District explained that “[a]n employee cannot necessarily be
expected to identify and request all possible accommodations
during the interactive process itself because ‘ “ ‘[e]mployees do
not have at their disposal the extensive information concerning
possible alternative positions or possible accommodations which
employers have. . . .’ ” ’ (Wysinger, supra, 157 Cal.App.4th at
p. 425.) However, . . . once the parties have engaged in the
litigation process, to prevail, the employee must be able to
identify an available accommodation the interactive process
17
should have produced: ‘Section 12940[, subdivision ](n), which
requires proof of failure to engage in the interactive process, is
the appropriate cause of action where the employee is unable to
identify a specific, available reasonable accommodation while in
the workplace and the employer fails to engage in a good faith
interactive process to help identify one, but the employee is
able to identify a specific, available reasonable accommodation
through the litigation process.’ (Nadaf–Rahrov, supra, 166
Cal.App.4th at p. 984.)”6 (Scotch, supra, 173 Cal.App.4th at
pp. 1018–1019.)
In arguing to the contrary, Shirvanyan also makes
a statutory interpretation argument that interpreting
section 12940, subdivision (n) (deeming a failure to engage
in the interactive process unlawful) as requiring an available
reasonable accommodation renders subdivision (m) (deeming
a failure to provide a reasonable accommodation unlawful)
superfluous. This does not logically follow, however, as an
employer might engage in the interactive process and still
refuse to offer a reasonable accommodation.
Moreover, even assuming that this language in
section 12940 defines as an unlawful employment practice
an employer’s failure to engage in an interactive process with
6 Tothe extent it reaches a contrary conclusion, we
disagree with Bagatti v. Department of Rehabilitation (2002)
97 Cal.App.4th 344, 360–362, as did the court in Nadaf-Rahrov.
(See Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 972 [“We
disagree with Bagatti because it fails to fully grapple with
the meaning of ‘reasonable accommodation’ in section 12940[,
subdivision] (m).”].)
18
an employee for whom no reasonable accommodation existed,
this would not mean that the employee has a cognizable FEHA
cause of action. Under such circumstances, had the employer
engaged in an interactive process, that process could not have
benefited the employee. (See Scotch, supra, 173 Cal.App.4th at
p. 1019 [“Put another way, if this case were presented to a jury,
what remedy could it provide? How was [the plaintiff employee]
damaged by any failure by [his employer] to engage in the
interactive process in good faith? The FEHA has a remedial
rather than punitive purpose.”].) A necessary corollary to this
is that the failure to engage in such process could not have
negatively impacted her ability to work. Permitting a FEHA
cause of action on such facts thus would allow recovery for harm
resulting solely from an employee’s perception that she was not
permitted a fair chance to perform her job—as opposed to her
actually having been denied such a fair chance. Only recovery
based on the latter is consistent with FEHA’s goal of “protect[ing]
and safeguard[ing] the right and opportunity of all persons to
seek, obtain, and hold employment without discrimination or
abridgment on account of . . . physical disability [or] mental
disability.” (§ 12920; see Salas v. Sierra Chemical Co. (2014)
59 Cal.4th 407, 430 [same]; Mendoza v. Town of Ross (2005) 128
Cal.App.4th 625, 637 [in amending FEHA, “the Legislature made
note of the important public goal that, by providing reasonable
accommodations for disabled employees, employers were helping
to strengthen our economy by keeping people working who would
otherwise require public assistance”].) Indeed, such a result
would serve no purpose at all, let alone the anti-discrimination
purpose of FEHA.
19
The District also argues the trial court erred in not giving
an instruction on this point. We need not decide whether this
failure was error or prejudicial, however, as we reverse on other
grounds set forth below.
2. Substantial evidence supports that
a reasonable accommodation was
available to accommodate only
Shirvanyan’s wrist injury
We next consider the District’s arguments that there
is insufficient evidence to support a finding that a reasonable
accommodation was available at the time the District should
have engaged in the interactive process with Shirvanyan.
When reviewing the sufficiency of the evidence on appeal,
“ ‘all conflicts must be resolved in favor of the [prevailing party],
and all legitimate and reasonable inferences indulged in to
uphold the [finding] if possible. . . . [T]he power of the appellate
court begins and ends with a determination as to whether there
is any substantial evidence, contradicted or uncontradicted,
which will support the [finding]. When two or more inferences
can be reasonably deduced from the facts, the reviewing court
is without power to substitute its deductions for those of the
[trier of fact].’ ” (Western States Petroleum, supra, 9 Cal.4th at
p. 571.) “Substantial evidence” is evidence “of ponderable legal
significance[,] . . . reasonable in nature, credible, and of solid
value.” (Estate of Teed (1952) 112 Cal.App.2d 638, 644.)
Shirvanyan’s theory at trial and on appeal is that three
types of reasonable accommodation of Shirvanyan’s disability
were available: “restructuring” her position, “preferential
reassignment” to another position, and a finite leave of absence.
Shirvanyan presented evidence regarding her requests for
20
accommodation of her wrist condition and her subsequent request
for accommodation of her shoulder injury. Shirvanyan argues
the center failed to engage in an interactive process in response
to any of these requests. We address the evidence regarding the
availability of an accommodation for each of her two injuries in
turn below.
a. Availability of reasonable accommodation
for Shirvanyan’s wrist injury
We conclude that, viewing the record in the light most
favorable to Shirvanyan, substantial evidence supports that finite
medical leave was an available reasonable accommodation for
Shirvanyan’s carpal tunnel/wrist injury at the time she requested
such accommodation. As the jury was instructed, a finite period
of leave constitutes a reasonable accommodation, “provided it is
likely that at the end of the leave, the employee would be able
to perform his or her duties” (Hanson v. Lucky Stores, Inc. (1999)
74 Cal.App.4th 215, 226), and that the leave does not cause the
employer undue hardship. (§ 12940, subd. (m)(1).) Dr. Berg
testified that temporarily stopping the repetitive actions that
cause a cumulative trauma injury like carpal tunnel syndrome,
at least early on, can eliminate the pain of such injury, allowing
the patient to engage in rehabilitation therapy exercises and
“sometimes . . . restore proper motion to the joint strength
and get back to the activity they were doing in the first place.”
Dr. Nazaryan estimated that approximately two months “is
the average time needed at least for even partial recovery of
nerve injury or nerve problem[s]. During that period of time,
[the] patient is supposed to get rest, treatment, appropriate
medications, physical therapy, in this particular case, until she’s
getting better and she’s able to go back to her customary work.”
21
Before additional diagnostics revealed that Shirvanyan suffered
from a torn rotator cuff in addition to nerve-related injuries,
Dr. Nazaryan anticipated this was the length of time Shirvanyan
would need to recover from those nerve injuries and be able
to return to work. From this, the jury could have reasonably
inferred that, before Shirvanyan injured her shoulder in
December 2015, a finite leave of absence of this length (or less)
could have permitted Shirvanyan’s wrist to recover to such an
extent that Shirvanyan could “go back to her customary work.”
b. Reasonable accommodation of
Shirvanyan’s shoulder injury
No evidence suggests a finite leave would have been a
reasonable accommodation for Shirvanyan’s shoulder injury,
however. When Dr. Nazaryan initially wrote Shirvanyan’s
medical leave note suggesting Shirvanyan could return to work
in a matter of months, Dr. Nazaryan was unaware of the
extent of Shirvanyan’s shoulder injury. Dr. Berg later concluded,
based on additional diagnostics, that this injury still prevented
Shirvanyan from returning to work at the time of trial, over two
years later. Neither Dr. Berg nor any other witness offered any
specific time by which Shirvanyan’s shoulder injury would no
longer prevent her from returning to her work at the center.
Thus, the evidence does not support that a “finite” term of leave
was an available accommodation. Nor could medical leave of
many years be a reasonable accommodation, as it “would produce
undue hardship to the employer’s operation.” (Nealy, supra, 234
Cal.App.4th at p. 373; § 12940, subd. (m)(1).)
A restructuring of job duties may constitute a reasonable
accommodation if it “ ‘enables the employee to perform the
essential functions of the job.’ ” (Scotch, supra, 173 Cal.App.4th
22at p. 1010, quoting Nadaf-Rahrov, supra, 166 Cal.App.4th
at p. 974.) Shirvanyan’s essential job functions, as defined
by her complaint, included “repetitive use of her hands to cut
foods, load and unload the dishwasher, and hand wash large
and heavy pots and pans.” The complaint’s allegations are “ ‘a
judicial admission’ ” that concede “ ‘the truth of [the] matter’ ”
and have “ ‘the effect of removing it from the issues.’ ” (Castillo v.
Barrera (2007) 146 Cal.App.4th 1317, 1324; Uhrich v. State Farm
Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 613 [“a judicial
admission cannot be rebutted: [i]t estops the maker”]; Kurinij v.
Hanna & Morton (1997) 55 Cal.App.4th 853, 871 [judicial
admissions in a complaint overcome evidence even if the opposing
party seeks to contradict the prior admission].)
Uncontradicted testimony of Shirvanyan’s own physician
similarly characterized Shirvanyan’s essential job functions
as including the ability “to lift up to about 50 pounds,” as well
as “prolonged standing, repetitive bending, repetitive lifting,
repetitive pulling, repetitive pushing, [and] repetitive use of
her hands.” It is not in dispute that, years after Shirvanyan’s
shoulder injury, she was still unable to lift her right arm.
Shirvanyan thus could not have engaged in many of the essential
job duties both she herself and her physician identified. As such,
restructuring Shirvanyan’s duties as a kitchen assistant was not
a reasonable accommodation that was available for Shirvanyan’s
shoulder injury. (See Nadaf-Rahrov, supra, 166 Cal.App.4th at p.
974.)
As to the possibility of Shirvanyan being reassigned,
she failed to offer any evidence that any position, the essential
functions of which she could perform (with or without
accommodation), was vacant at the relevant time. FEHA “does
23
not require reassignment if there is no vacant position the
employee is qualified to fill.” (Atkins v. City of Los Angeles
(2017) 8 Cal.App.5th 696, 721.) Shirvanyan appears to suggest
that other unclassified assistant level job assignments were
vacant in the sense that, the job assignments and duties of
employees at the unclassified level could be and often were
rotated. She points in particular to testimony that her former
director could have transferred Shirvanyan to other unclassified
positions. Rotating the duties of other unclassified employees
in the manner Shirvanyan posits—that is, letting Shirvanyan
take over other employees’ duties that Shirvanyan was capable
of performing, and requiring those other employees to take over
Shirvanyan’s previous duties in the kitchen instead—would
necessarily involve redefining another employee’s job duties,
potentially in a very significant way. But FEHA does not require
this, as “[t]he responsibility to reassign a disabled employee
who cannot be otherwise accommodated does ‘not require . . .
moving another employee.’ ” (Spitzer v. Good Guys, Inc. (2000)
80 Cal.App.4th 1376, 1389.) We thus need not reach the issue,
extensively briefed by the parties, as to whether the evidence
supports that Shirvanyan could perform and/or was qualified
to perform the essential job functions of other assistant level
positions at the center.
For these reasons, the record does not contain substantial
evidence that there was an available reasonable accommodation
for Shirvanyan’s shoulder injury. There is thus insufficient
evidence to support the jury’s verdict in Shirvanyan’s favor on
her reasonable accommodation and interactive process claims, to
the extent that these claims rely on a failure to accommodate or
24
engage in the interactive process regarding Shirvanyan’s
shoulder injury.
B. Sufficiency of the Evidence to Support a
Failure to Accommodate Shirvanyan’s
Shoulder Injury
The evidence is insufficient to support Shirvanyan’s
interactive process and reasonable accommodation claims to the
extent they are based on the District’s handling of Shirvanyan’s
shoulder injury for the additional reason that the evidence does
not reflect any failure to provide reasonable accommodation
of that injury. This is because nothing in the record supports
that Shirvanyan stopped working as a result of any action by
the District. Rather, even viewing the evidence in the light
most favorable to Shirvanyan, it establishes that, following
Shirvanyan’s shoulder injury, Shirvanyan indicated to the
District that she would not be able to return to work until
March 2016, that the District did not respond positively or
negatively, and that Shirvanyan did not return to work at any
time thereafter. Nothing in the record suggests the District
denied Shirvanyan the leave she requested by providing
Dr. Nazaryan’s medical release form indicating Shirvanyan
would need to be off work until March 2016. Nothing in the
record suggests the District fired Shirvanyan or told her not
to return to work after her shoulder healed. And Shirvanyan
does not argue that she quit because of the District’s failure
to accommodate any of her injuries—to the contrary, on appeal,
she denies that she quit. The only evidence in the record bearing
on why Shirvanyan did not return to work is testimony from
Dr. Berg that he continued to view her shoulder injury as
preventing such a return to work in late 2018. Thus, nothing
25
suggests that, when Shirvanyan requested an accommodation
for her shoulder injury—namely, medical leave until March
2016—the District refused. As a result, the evidence also
does not support that the District had occasion to engage in
the interactive process with Shirvanyan regarding her shoulder
(given that nothing in the record suggests the District had
denied her request for a reasonable accommodation in the form
of temporary medical leave). On this basis as well, the evidence
does not support Shirvanyan’s interactive process and reasonable
accommodation claims to the extent they stem from the District’s
handling of Shirvanyan’s shoulder injury.
C. Retrial Is Necessary to Determine Whether
the District’s Response to Shirvanyan’s Wrist
Injury Supports a Failure to Accommodate
and/or Reasonable Accommodation Claim
For the reasons discussed above, sufficient evidence does
not support the jury’s verdict on her failure to accommodate
and interactive process claims to the extent those claims involve
the District’s response to her shoulder injury. But it does not
necessarily follow that the jury’s verdict entitles Shirvanyan
to recover based on the District’s response to her wrist injury.
Shirvanyan offered evidence regarding the District’s response
to both injuries, and the verdict form did not require the jury
to indicate the factual basis for its verdict. Responding to
either injury in a manner that violates FEHA would have been
sufficient to support a verdict in Shirvanyan’s favor. Thus,
although the jury’s verdict in Shirvanyan’s favor on these claims
certainly could have been based on the jury concluding that
both the District’s handling of Shirvanyan’s wrist injury and its
handling of her shoulder injury violated FEHA, it likewise could
26
have been based on a conclusion that the District’s response
to just one of these two injuries violated FEHA. The record
does not provide any basis on which to determine which is the
case. Thus, our conclusion that Shirvanyan should not recover
based on the District’s response to her shoulder injury requires
a retrial to allow the jury to determine whether the District’s
response to her wrist injury, standing alone, constituted a failure
to accommodate and/or failure to engage in the interactive
process in violation of FEHA and, if so, what damages, if any,
Shirvanyan suffered as a result. (See Woodcock v. Fontana
Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 457
(Woodcock) [“[i]f the verdict is hopelessly ambiguous, a reversal
[and retrial] is required”].)
We disagree with Shirvanyan that such retrial should be
limited to the issue of damages. Appellate courts certainly may,
under appropriate circumstances, order such a limited issue
retrial. (Woodcock, supra, 69 Cal.2d at p. 457 [retrial following
ambiguous verdict “may be limited to the issue of damages”];
Torres v. Automobile Club of So. California (1997) 15 Cal.4th
771, 776 [“ ‘appellate courts have power to order a retrial on a
limited issue, if that issue can be separately tried without such
confusion or uncertainty as would amount to a denial of a fair
trial’ ”].) But doing so here would require us to assume the
jury found (or would find) liability based solely on the District’s
response to Shirvanyan’s wrist injury, which, given the manner
in which Shirvanyan chose to try her case, we cannot do. A new
trial limited to damages “ ‘should be granted . . . only if it is clear
that no injustice will result’ ” and “ ‘should be considered with
the utmost caution,’ ” with “ ‘any doubts’ ” resolved “ ‘in favor
of granting a complete new trial.’ ” (Liodas v. Sahadi (1977) 19
27
Cal.3d 278, 285–286.) A full retrial of Shirvanyan’s reasonable
accommodation and interactive process claims based on the
District’s response to her wrist injury is thus appropriate.
D. Such Limited Retrial Would Not Be Futile
The District argues that any retrial—whether or not
limited to damages—would be futile, because the evidence
presented could not support a finding of damages from the
District’s response to Shirvanyan’s wrist injuries in any event.
We disagree.
It is certainly true that the vast majority of the damages
evidence Shirvanyan presented at trial involved how the
District’s response to her shoulder injury affected Shirvanyan.
Shirvanyan’s damages expert calculated economic damages
(specifically, lost wages as a result of her depression) from April
2016, several months after Shirvanyan had stopped working due
to her shoulder injury. Shirvanyan concedes that these economic
damages are not recoverable if liability is based solely on FEHA
violations involving her wrist injury.
The bulk of the noneconomic damages evidence involved
Shirvanyan’s depression, which all evidence suggests began only
after she stopped working at the center following her shoulder
injury. Shirvanyan does not argue that the District’s handling
of her wrist injury directly or indirectly caused this depression.
Nor could she. Shirvanyan has disavowed (as she must on the
evidence presented) any claim that the District’s handling of
her wrist condition caused the shoulder injury that rendered
her unable to work—indeed, according to Shirvanyan, she
is “not attempting to prove the medical cause of any physical
injury.” And Dr. Reading’s testimony does not provide a link
between the District’s handling of Shirvanyan’s wrist injury and
28
Shirvanyan’s depression in the way his testimony linked the
District’s handling of her shoulder injury and her depression.
Specifically, Dr. Reading opined that “adverse events stemming
from the action or inaction of others” lead to a “potential for
injury [that] is greater both in severity and duration,” and that
Shirvanyan’s perception that her shoulder injury and resulting
inability to work was “avoidable” was “an aggravating factor”
that “increase[d] the severity of her depression and her
pain,” transforming distress from her inability to work into a
debilitating life-long depressive disorder. The same logic does not
apply to the District’s handling of her wrist injury. The evidence
regarding Shirvanyan’s major depressive disorder thus could not
support a finding of damages from the District’s response to
Shirvanyan’s wrist injury, as Shirvanyan’s counsel acknowledged
at the hearing before this court.
But the record does contain some evidence from which
the jury could conclude on retrial that the District’s response
to Shirvanyan’s wrist injury caused Shirvanyan noneconomic
harm—namely, emotional distress. Emotional distress damages
may compensate a plaintiff “ ‘for . . . grief, anxiety, worry,
mortification . . . humiliation, [or] indignity,’ ” and a plaintiff
may prove such experiences solely through her own testimony.
(Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401.)
Shirvanyan testified she experienced such feelings when the
District’s employees denied her requests for accommodations of
her wrist condition. Specifically, Shirvanyan testified to being
upset and crying in response to comments her former supervisor
made when Shirvanyan complained of pain from her wrist
condition in 2015, to being upset when her supervisor refused
Shirvanyan’s repeated requests for accommodation of her wrist
29
condition, and that she worried she would never get better
because they refused to assist. There is no fixed standard for
the evidence needed to support a finding of emotional distress
damages. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 953
[“[I]t is the members of the jury who, when properly instructed,
are in the best position to assess the degree of the harm suffered
and to fix a monetary amount as just compensation therefor.”].)
It is thus possible Shirvanyan’s testimony could provide a
sufficient basis for a jury to calculate a damages award, should
they conclude that the District is liable based on its handling
of Shirvanyan’s wrist injury. (See Rony v. Costa (2012) 210
Cal.App.4th 746, 756 [a jury evaluating “hard-to-quantify
injuries, such as emotional and reputational ones . . . [is] free
to place any dollar amount” on the harm so long as the award
does not shock the moral sense and is not influenced by passion
or prejudice].) The limited retrial of Shirvanyan’s reasonable
accommodation and interactive process claims we describe above
thus would not be futile.
In sum, substantial evidence does not support the jury’s
verdict on Shirvanyan’s failure to accommodate and interactive
process FEHA claims to the extent they are based on the
District’s handling of Shirvanyan’s shoulder injury. Because the
verdict is ambiguous as to whether the jury found for Shirvanyan
based in any part on the District’s response to her wrist injury,
we reverse the judgment and remand for a retrial only on
Shirvanyan’s reasonable accommodation and interactive process
claims, and solely to the extent those claims seek recovery for the
District’s response to Shirvanyan’s wrist injury.
30
E. The Workers’ Compensation Act Does Not
Bar the Portion of Shirvanyan’s FEHA
Claims to Be Retried
The District argued in its initial briefing that the WCA
(Lab. Code, § 3200 et seq.) bars recovery for Shirvanyan’s
depressive disorder, because that disorder is derivative
of Shirvanyan’s shoulder injury, a harm compensable only
under the WCA. As noted, nothing in the evidence connects
the District’s handling of her wrist injury to Shirvanyan’s
depression, and Shirvanyan has acknowledged that no such
connection exists. The District’s WCA exclusivity arguments
regarding Shirvanyan’s depressive disorder are therefore moot.
To assist the court on retrial, however, we briefly address
whether WCA exclusivity bars the limited version of
Shirvanyan’s claims to be retried. We conclude that it does not.
The WCA provides the exclusive remedy for an injury
sustained by an employee in the course and scope of employment.
(Lab. Code, §§ 3600, subd. (a), 3602, subd. (a); Charles J. Vacanti,
M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813
(Vacanti).) The workers’ compensation exclusivity rule is
based on the “presumed ‘compensation bargain’ ” in which, in
exchange for limitations on the amount of liability, the employer
assumes liability regardless of fault for injury arising out of
and in the course of employment. (Shoemaker v. Myers (1990)
52 Cal.3d 1, 16.) The compensation bargain encompasses both
psychological and physical injury arising out of and in the course
of the employment. (Lab. Code, §§ 3600, subd. (a), 3208.3.)
The compensation bargain—and thus workers’
compensation exclusivity—also encompasses injury “collateral
to or derivative of a compensable workplace injury” (Vacanti,
supra, 24 Cal.4th at pp. 814), such as emotional distress
31
stemming from the experience of a physical injury at work. (See
id. at pp. 814–815; Miklosy v. Regents of University of California
(2008) 44 Cal.4th 876, 902; Cole v. Fair Oaks Fire Protection Dist.
(1987) 43 Cal.3d 148, 160.) This serves the goal of providing
a “single recovery of benefits on account of a single injury or
disability.” (Sea-Land Service, Inc. v. Workers’ Comp. Appeals
Bd. (1996) 14 Cal.4th 76, 82.)
Shirvanyan’s reasonable accommodation and interactive
process claims based on the District’s handling of her wrist
condition involve an injury that might fall within the
compensation bargain (her carpal tunnel syndrome), but the
harm for which she seeks to recover is not “derivative of ” or “on
account of ” that injury. Shirvanyan does not claim she suffered
emotional distress because her wrist was injured, or because
her wrist injury was painful, or because her wrist injury
prevented her from working. Rather, she claims she suffered
emotional distress because the District repeatedly denied her
the reasonable accommodations to which FEHA entitled her and
failed to engage in the process FEHA requires for identifying
such accommodations. Her FEHA causes of action seeking
compensation for such distress thus do not seek to recover on
account of her wrist injury and disability, but rather on account
of the way the District treated her because of those limitations.
This is a separate harm and not derivative of anything falling
within the compensation bargain.
The general rule of workers’ compensation exclusivity
“applies only if the risks resulting in the injury were
encompassed within the ‘compensation bargain’ [citation] . . .
[which] does not encompass conduct that contravenes a
fundamental public policy or exceeds the risks inherent in the
32
employment relationship.” (Singh v. Southland Stone, U.S.A.,
Inc. (2010) 186 Cal.App.4th 338, 366; accord, Vacanti, supra,
24 Cal.4th at pp. 811–812.) Thus, “some claims, including
those based on . . . discrimination or other conduct contrary
to fundamental public policy, are not subject to the exclusivity
provisions of the workers’ compensation law. [Citation.] Thus,
such claims may be the subject of both workers’ compensation
proceedings and civil actions.” (Claxton v. Waters (2004) 34
Cal.4th 367, 373, citing City of Moorpark v. Superior Court (1998)
18 Cal.4th 1143, 1155 (Moorpark).)
A failure to provide reasonable accommodations to a
disabled employee in violation of FEHA, or to engage in the
statutorily required steps to identify such accommodation,
violates the fundamental public policy underlying all of FEHA:
“to promote equal employment opportunity.” (Cal. Code Regs.,
tit. 2, § 11006; see Gov. Code, § 12920.) For these reasons
as well, Shirvanyan’s FEHA claims based on the District’s
handling of her wrist injury are not barred by WCA exclusivity.
Our conclusion in this regard is consistent with the
California Supreme Court’s conclusion in Moorpark that FEHA
discrimination claims under Labor Code section 132a are not
barred by the WCA exclusivity rule. The Court in Moorpark
relied in part on the statutory language of Labor Code
section 132a, which is applicable only to discrimination claims.
But the Court further concluded that disability discrimination
“falls outside the compensation bargain, and workers’
compensation is not the exclusive remedy” based on the broader
goals and generally applicable provisions of FEHA as well.
(Moorpark, supra, 18 Cal.4th at p. 1155; id. at p. 1156 [“[t]he
provisions of the FEHA, and our decisions interpreting it, further
33
support our conclusion that section 132a is not exclusive”]; see
also id. at pp. 1156–1158.) The Court’s discussion in this regard
equally supports the conclusion that non-discrimination FEHA
causes of action are outside the compensation bargain (accord,
Bagatti v. Department of Rehabilitation, supra, 97 Cal.App.4th
at p. 366 [applying reasoning of Moorpark to conclude workers’
compensation exclusivity did not bar reasonable accommodation
claim]), particularly given the Legislature’s decision to place
disability discrimination, failure to provide reasonable
accommodations, and failure to engage in the interactive process
on equal footing as unlawful employment practices under
section 12940. (See § 12940, subds. (a), (c), (m)(1) & (n); see
also § 12920 [“It is the purpose of this part [which includes
sections 12940, subdivisions (m)(1) and (n)] to provide effective
remedies that will eliminate these discriminatory [employment]
practices.”].) The WCA thus does not bar Shirvanyan’s wrist-
related reasonable accommodation and interactive process
claims.
F. Attorney Fees Appeal
Because we reverse the judgment in Shirvanyan’s favor, it
necessarily follows that she is not presently entitled to any award
of attorney fees. The trial court’s attorney fees order is therefore
reversed. (Merced County Taxpayers’ Assn. v. Cardella (1990)
218 Cal.App.3d 396, 402 [an order awarding attorney fees “falls
with a reversal of the judgment on which it is based”].) Should
Shirvanyan prevail on retrial, the trial court will need to
reassess the appropriate amount of attorney fees, taking into
consideration the outcome of this appeal. (See Chavez v. City of
Los Angeles (2010) 47 Cal.4th 970, 989–990 [degree of success a
factor in fee calculation].)
34
DISPOSITION
The judgment of the court is reversed. Upon remand, the
court is instructed to conduct a new trial only on Shirvanyan’s
reasonable accommodation and interactive process claims based
on the District’s response to Shirvanyan’s wrist condition and
carpal tunnel syndrome in 2014 and 2015.
The order awarding Shirvanyan attorney fees is reversed.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
35