Filed 2/25/16




                      CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FIFTH APPELLATE DISTRICT

DENNIS WALLACE,
                                                                   F068068
    Plaintiff and Appellant,
                                                           (Super. Ct. No. 663764)
    v.

COUNTY OF STANISLAUS,                                            OPINION
    Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Hurl
William Johnson III, Judge.
         Law Offices of Stephen M. Murphy, Stephen M. Murphy, P. Bobby Shukla; and
Tania B. Rose for Plaintiff and Appellant.
         Liebert Cassidy Whitmore, Morin I. Jacob and Steven Tang for Defendant and
Respondent.
                                          -ooOoo-
         This disability discrimination case was brought by Sheriff’s Deputy Dennis
Wallace against the County of Stanislaus (County) under Government Code section
12940.1 Wallace alleged disability discrimination based on County’s removing him from

*       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.G. of the Discussion.
1        All unlabeled statutory references are to the Government Code.
his job as bailiff and placing him on an unpaid leave of absence because of its incorrect
assessment that he could not safely perform his duties as a bailiff even with reasonable
accommodation.
       The primary legal issue presented in this appeal is how to instruct a jury on the
employer’s intent to discriminate against a disabled employee and, more specifically,
what role “animus” plays in defining that intent. The trial court believed proof of animus
or ill will was required and modified the version of California Civil Jury Instruction
(CACI) No. 2540 in effect at the time to include a requirement that Wallace prove
County regarded or treated him “as having a disability in order to discriminate.”
       On appeal, Wallace challenges this instruction and the related question in the
special verdict form. We conclude the instruction and special verdict form contained
error. The proper standard regarding employer intent or motivation was decided by our
Supreme Court in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 (Harris). Under
Harris, Wallace could prove the requisite discriminatory intent by showing his actual or
perceived disability was a “substantial motivating factor/reason” for County’s decision to
place him on a leave of absence. (Id. at p. 232.)2 California law does not require an
employee with an actual or perceived disability to prove that the employer’s adverse
employment action was motivated by animosity or ill will against the employee. Instead,
California’s statutory scheme protects employees from an employer’s erroneous or
mistaken beliefs about the employee’s physical condition. (§ 12926.1, subd. (d).) In
short, the Legislature decided that the financial consequences of an employer’s mistaken
belief that an employee is unable to safely perform a job’s essential functions should be




2     Harris was decided after the jury trial of Wallace’s disability discrimination claim.
The substantial-motivating-reason test adopted in Harris was incorporated into
subsequent versions of CACI Nos. 2507 and 2540.

                                             2
borne by the employer, not the employee, even if the employer’s mistake was reasonable
and made in good faith.
       We further conclude that the instructional error was prejudicial and remand
Wallace’s disability discrimination claim for a retrial. The retrial shall be limited to
determining the amount of damages resulting from County’s decision to place Wallace on
an unpaid leave of absence from January 5, 2011, until January 30, 2013, when Wallace
returned to patrol duties. A limited retrial is appropriate because the jury found that (1)
County regarded or treated Wallace as if he were disabled, (2) Wallace was able to
perform the essential job functions of a deputy sheriff with or without reasonable
accommodation, and (3) County failed to prove Wallace’s disability would increase the
danger to himself or others while he performed those job functions. In addition, we find
as a matter of law that the reason County placed Wallace on a leave of absence on
January 5, 2011, was its mistaken belief that he could not safely perform the essential job
functions of a deputy sheriff. Thus, the substantial-motivating-reason element was
proven. Also, we find as a matter of law that County’s decision to place Wallace on
leave was a substantial factor in causing Wallace to suffer economic losses. Based on
these findings, the retrial can be limited to the issues related to the amount of Wallace’s
damages.
       We therefore reverse the judgment and remand for a limited retrial.
                                          FACTS
       Wallace was born in 1963. He worked for the E & J Gallo Winery from 1986 to
1994. In 1995, Wallace was employed by the City of Hughson Police Department.
       In December 1997, Wallace was hired by County as a deputy sheriff. He started
in patrol and then worked in various positions with the sheriff’s department.
       In October 2007, Wallace injured his left knee and filed a workers compensation
claim for that injury. He later reinjured his left knee during a river sweep. He was

                                              3
treated for left knee pain by Jonathan Cohen, M.D., an orthopedic surgeon who
prescribed a knee brace. Wallace wore the knee brace at work until he had knee surgery
on September 9, 2008. After the surgery performed by Dr. Cohen, Wallace took a Labor
Code section 48503 paid leave of absence until December 15, 2008, when he returned to
light duty.
       From January 2009 until April 2009, Wallace took additional paid leave because
of the knee injury. After this leave, Wallace began to work a light duty assignment in the
property and evidence room. His restrictions at the time were limited climbing, limited
walking on uneven ground, and limited running. These limitations were part of a May
2009 report prepared by Dr. Pedram Vaezi, a chiropractor and workers compensation
“qualified medical evaluator.” This report was approved by Dr. Cohen.
       Wallace worked light duty until he began another leave of absence in September
2009, because of his knee. By March 12, 2010, the one year of paid leave under Labor
Code section 4850 had been exhausted.
       On April 1, 2010, Wallace hand delivered a copy of Dr. Vaezi’s supplemental
report dated September 16, 2009, to the sheriff’s department. Peggy Huntsinger, an
assistant risk manager with County, testified that County did not receive the supplemental
report earlier because the third-party administrator that handled County’s workers
compensation claims had not forwarded it to County. The restrictions for Wallace’s left
knee, as clarified in the supplemental report, indicated (1) no prolonged walking in
excess of 30 to 45 minutes without a five-minute break, (2) no walking on uneven ground



3       Labor Code section 4850 provides that law enforcement officers, firefighters and
certain other personnel temporarily or permanently disabled in the course of duty are
entitled to a leave of absence without loss of salary in lieu of workers compensation
benefits for up to one year or until retirement on a disability pension. (Ritchie v.
Workers’ Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174, 1180.)

                                            4
in excess of 30 minutes without a five-minute break, and (3) no prolonged standing in
excess of 30 to 45 minutes without a five-minute break.
       On April 9, 2010, Wallace received and initialed a “NOTICE OF OFFER OF
MODIFIED OR ALTERNATIVE WORK” on a preprinted workers compensation form.
County offered Wallace an assignment as a bailiff for at least 12 months at his pre-injury
rate of pay. County’s cover letter referred to the position as a permanent modified duty
assignment with the restrictions stated in Dr. Vaezi’s supplemental report. It also stated
the restrictions “are to be considered ‘Permanent’ until your Agreed Medical Exam .…”
       During the period that Wallace worked as a bailiff, the sergeants who supervised
Wallace had no issues with his performance. Sergeant Owens’s performance evaluation
of Wallace rated him as above average.
       In October 2010, Wallace underwent the agreed medical exam with Richard
Baker, MD, an orthopedic surgeon, whose practice is limited to workers’ compensation
agreed medical exams. During the exam, Wallace told Dr. Baker about weakness and
intermittent pain in his left knee, back pain, daily pain and occasional popping in his left
ankle, pain in his shoulders, and daily, continuous mild pain in his neck. Dr. Baker’s
diagnosis of Wallace’s left knee described medial and lateral meniscus tears, subluxation
of the patella, synovitis, cartilaginous defect, femoral condyle, partial tear of the ACL
and a tear of the MCL.
       Based on his examination of Wallace, Dr. Baker issued a report dated October 25,
2010, that listed various “preclusions” including (1) no lifting more than 50 pounds, (2)
no bilateral overhead work or repetitive right over shoulder work, (3) no forceful
pushing, pulling, torqueing with the right upper extremity, (4) no weight bearing more
than 75 percent of the time, (5) no more than occasional climbing, squatting, kneeling,
crouching, crawling or pivoting, and (6) no walking on uneven ground more than 75
percent of the day. Dr. Baker used the terms “preclusion” and “precluded” to mean

                                              5
something that should be avoided 90 to 100 percent of the time, with 90 percent being a
reasonable estimate.
       Based on Dr. Baker’s report, a disability coordinator for County wrote a letter to
Captain Tim David listing Wallace’s work restrictions, to which Captain David
responded, “No, we do not have modified or alternative work available.” Undersheriff
William Heyne was made aware of the restrictions in Dr. Baker’s report and was
involved in the decision to remove Wallace from his bailiff position on the grounds that
Wallace could not perform the job with those restrictions. Heyne relied on Dr. Baker’s
restrictions, thought County was bound by those restrictions, and did not ask Wallace’s
supervisors if he was able to perform the job. Heyne explained the decision by stating,
“The issue is, once [Dr. Baker] puts the restrictions down, we have to do something.
Because if we don’t do something, then we are liable because, if [Wallace] gets injured, if
somebody else gets injured because [Wallace is] unable to perform his job, because
everybody would say, wait a second, [with] his physical injuries [Wallace] can’t wrestle
with a suspect; yet you put him in an environment where he would have to.”
       On January 5, 2011, Wallace attended a meeting with County Human Resources
consultant Brandi Welsh, Lieutenant Mick Hardenbrook and other representatives from
the Sheriff’s Department. Welsh testified the purpose of the meeting was to discuss
medical work restrictions with Wallace, to explain the department’s conclusions based on
those work restrictions, and to start the discussion with Wallace about whether he was
interested in looking at other County positions. As to the department’s conclusions,
Wallace was told that (1) he was to be removed from his position as bailiff that day and
(2) the department had not identified any assignment as deputy sheriff that could
accommodate his work restrictions. Wallace stated that he could perform the functions of
a bailiff and also mentioned working as a detective or school resource officer. County
did not alter its decision to place Wallace on leave. Welsh described County’s treatment

                                             6
of Wallace following the January 5, 2011, meeting by stating, “He had been
accommodated with a leave of absence.” Following this statement, counsel asked Welsh:
“You are saying an unpaid leave of absence is an accommodation to an employee who
may have a disability?” Welsh answer, “Yes.”
       On January 10, 2011, Welsh and Wallace met again. Welsh stated the purpose of
the meeting was to determine if Wallace wanted to look at other County positions after he
had had an opportunity to consider the information provided at the earlier meeting. In
discussing other positions, Wallace stated that he was interested only in positions with
safety retirement.4
       From January 10, 2011, to February 2012, Welsh had no communications with
Wallace about his work status.5 In a letter to Wallace dated February 9, 2012, Welsh set
forth a history of Wallace’s case, including the work restriction identified by Dr. Baker,
and addressed Wallace’s statement at his January 2012 deposition that his employment
with County had been terminated. The letter stated Wallace had not been terminated, but
was on a leave of absence and his deposition testimony “demonstrated a
misunderstanding regarding County’s obligation to follow your medical work
restrictions.” The letter stated County had not received any updated medical information
about Wallace’s ability to work and asked Wallace to provide County with information
about (1) any changes in his medical work status or (2) any interest he had in alternative
County employment (i.e., not as a deputy sheriff) so that he and County could engage in
the interactive process.




4     During trial, the safety retirement benefit was described as 3 percent at age 50 and
a nonsafety retirement was described as 2 percent at age 55.
5      As outlined later, Wallace filed a complaint for disability discrimination on May
20, 2011.

                                             7
       Welsh and Wallace communicated sporadically from February to July 2012. On
July 3, 2012, shortly before the first trial, County offered to send Wallace to a fitness-for-
duty examination to obtain updated medical information. County offered the
examination because time had passed since Dr. Baker’s October 2010 report and Wallace
continued to maintain that he could perform the essential functions of a deputy sheriff.
County also offered Wallace a job as a welfare fraud investigator, a nonsafety retirement
position.
       Dr. LaRoche performed the fitness-for-duty examination and issued a report dated
January 25, 2013. Based on Dr. LaRoche’s report, County placed Wallace back at work.
On January 30, 2013, over three months before the second trial, Wallace returned to full
duty as a patrol office.
                                      PROCEEDINGS
The Complaint
       On May 20, 2011, a few days before his accruals for sick leave and vacation were
exhausted, Wallace filed a complaint against County and the sheriff’s department
alleging causes of action under the California Fair Employment and Housing Act (FEHA)
(§ 12900 et seq.) for (1) disability discrimination, (2) failure to accommodate his
disability, (3) failure to engage in the interactive process, and (4) failure to prevent
discrimination.
First Jury Trial
       In July 2012, the first jury trial began. On August 7, the trial court instructed the
jury on the four causes of action and counsel presented their closing arguments. The jury
concluded its deliberations on August 15, after resolving the first cause of action and
deadlocking on the other three.
       As to the disability discrimination claim, the jury’s answers to the first three
questions in the special verdict show it found (1) County treated Wallace as if he had a

                                               8
disability that limited his ability to engage in a major life activity; (2) Wallace was able to
perform the essential job duties of a deputy sheriff with or without reasonable
accommodation; and (3) County failed to prove Wallace would endanger himself or
others in performing the essential job duties of a deputy sheriff. The jury answered “No”
to the fourth question, which asked: “Did the County of Stanislaus regard or treat Dennis
Wallace as having a physical disability in order to discriminate?” This finding resolved
the disability discrimination cause of action in favor of County.
       The jurors were not able to resolve the remaining three causes of action because
they deadlocked on question Nos. 7, 12 and 14 of the special verdict with votes of six to
six, seven to five, and seven to five, respectively.6 As to question No. 11 (the first
element of Wallace’s claim that County failed to engage in the interactive process), the
jury found that Wallace had been willing to participate in the interactive process to
determine whether a reasonable accommodation would allow him to perform the
essential functions of a deputy sheriff. Based on the jury’s inability to resolve the final
three causes of action, the court declared a mistrial as to those claims.
Motions for Summary Adjudication
       After the first trial, each side filed a motion for summary adjudication.    The trial
court granted County’s motion and eliminated the fourth cause of action (failure to
prevent discrimination) based on the jury’s resolution of the discrimination claim in favor
of County.   The trial court denied Wallace’s motion for summary adjudication, which
sought an order that the direct estoppel doctrine (i.e., issue preclusion) barred County

6      Question No. 7 asked whether a reasonable accommodation existed that would
have allowed Wallace to perform the essential functions of a deputy sheriff, an element
of Wallace’s claim that County failed to provide a reasonable accommodation. Question
No. 12 asked whether County failed to participate in a timely, good faith interactive
process with Wallace to determine whether a reasonable accommodation could be made.
Question No. 14 asked whether County failed to take reasonable steps to prevent
discrimination, the main element of Wallace’s fourth cause of action.

                                              9
from relitigating the questions on which Wallace prevailed in the first trial—namely,
question Nos. 1, 2, 3 and 11 of the special verdict.
Second Jury Trial
       In May 2013, a second jury trial was held on the remaining causes of action for (1)
failure to accommodate and (2) failure to engage in the interactive process. Using a
general verdict, the jury unanimously found in favor of County on both claims.
       In July 2013, the trial court implemented the jury’s verdict by filing a judgment in
favor of County. Wallace filed a timely appeal from the judgment and the orders on the
motions for summary adjudication. County did not file a protective cross-appeal with
respect to the first jury’s findings that were favorable to Wallace.
                                      DISCUSSION
I.     OVERVIEW OF FEHA’S PROHIBITION OF DISCRIMINATION
       A.      Section 12940
       Section 12940 defines various unlawful employment practices, including certain
types of employment discrimination. Wallace’s disability discrimination cause of action
is based on subdivision (a) of section 12940 and that statute is the primary source of the
elements to Wallace’s claim. Therefore, we quote a substantial portion of the text of that
subdivision:

       “It is 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,
       genetic information, marital status, sex, gender, gender identity, gender
       expression, age, sexual orientation, or military and veteran status 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



                                             10
       to employment, or to discriminate against the person in compensation or in
       terms, conditions, or privileges of employment.

       “(1) 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, [(A)]is
       unable to perform his or her essential duties even with reasonable
       accommodations, or [(B)] 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.”7 (Italics added.)
       Except for the terms “physical disability” and “mental disability,” the foregoing
statutory text defines both disability discrimination causes of action and discrimination
claims based on race, religion, color, national origin, age and sex. In distilled form,
section 12940 makes it unlawful for an employer “to discriminate against” a person “in
terms, conditions, or privileges of employment” “because of” the listed factors.
Therefore, from the perspective of the wording of subdivision (a) of section 12940,
disability discrimination claims would appear to be similar to other types of
discrimination claims. This appearance is misleading.
       B.     Disability Discrimination Claims
       Although the same statutory language that prohibits disability discrimination also
prohibits discrimination based on race, age, sex, and other factors, we conclude that
disability discrimination claims are fundamentally different from the discrimination
claims based on the other factors listed in section 12940, subdivision (a). These
differences arise because (1) additional statutory provisions apply to disability
discrimination claims, (2) the Legislature made separate findings and declarations about
protections given to disabled persons, and (3) discrimination cases involving race,

7     The provisions of subdivision (a)(1) of section 12940 that address physical or
mental disability have parallel provisions in subdivision (a)(2) that relate to the
“employee’s medical condition.”

                                             11
religion, national origin, age and sex, often involve pretexts for the adverse employment
action—an issue about motivation that appears less frequently in disability discrimination
cases.
               1.     Direct Evidence of Motive—No Shifting Burdens
         The distinction between cases involving direct evidence of the employer’s motive
for the adverse employment action and cases where there is only circumstantial evidence
of the employer’s discriminatory motive is critical to the outcome of this appeal. There is
a vast body of case law that addresses proving discriminatory intent in cases where there
was no direct evidence that the adverse employment action taken by the employer was
motivated by race, religion, national origin, age or sex. In such cases, proof of
discriminatory motive is governed by the three-stage burden-shifting test established by
the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S.
792 (McDonnell Douglas).8 (See St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502,
506; Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 252-253.) The
three stages are (1) the plaintiff making a prima facie showing of employment
discrimination, (2) the employer producing a legitimate reason for the adverse
employment action, and (3) the burden shifting back to the plaintiff to prove intentional
discrimination by offering evidence of the employer’s discriminatory motive, which can
include attacking the employer’s proffered reasons as pretexts for discrimination. (Guz,
supra, 24 Cal.4th at pp. 354-356.)
         The three-stage framework and the many principles adopted to guide its
application do not apply in discrimination cases where, like here9, the plaintiff presents

8     The California Supreme Court has adopted the McDonnell Douglas test. (Guz v.
Bechtel National Inc. (2000) 24 Cal.4th 317, 354 (Guz); Yanowitz v. L’Oreal USA, Inc.
(2005) 36 Cal.4th 1028, 1042.)
9     Based on Dr. Baker’s report on Wallace’s physical limitations, the County placed
him on unpaid leave.

                                             12
direct evidence of the employer’s motivation for the adverse employment action. In
many types of discrimination cases, courts state that direct evidence of intentional
discrimination is rare (e.g. Serri v. Santa Clara University (2014) 226 Cal.App.4th 830,
860, quoting Guz, supra, 24 Cal.4th at p. 354), but disability discrimination cases often
involve direct evidence of the role of the employee’s actual or perceived disability in the
employer’s decision to implement an adverse employment action. Instead of litigating
the employer’s reasons for the action, the parties’ disputes in disability cases focus on
whether the employee was able to perform essential job functions, whether there were
reasonable accommodations that would have allowed the employee to perform those
functions, and whether a reasonable accommodation would have imposed an undue
hardship on the employer. To summarize, courts and practitioners should not
automatically apply principles related to the McDonnell Douglas test to disability
discrimination cases. Rather, they should examine the critical threshold issue and
determine whether there is direct evidence that the motive for the employer’s conduct
was related to the employee’s physical or mental condition.
              2.     Legislative Findings Specific to Disabilities
       Another basis for distinguishing disability discrimination claims from
discrimination alleged on other grounds is the specific legislative findings and
declarations relating to disabilities. These finding are contained in section 12926.1,10

10     County’s arguments about discriminatory intent requiring animus do not mention
section 12926.1 or the legislative intent to protect employees from erroneous or mistaken
beliefs about their physical condition. Indeed, none of the briefs filed in this court cite
section 12926.1. In addition, County has not argued that this court should recognize the
limited defense of reasonable mistake that has been adopted by some federal courts
applying the Americans with Disabilities Act (ADA) (42 U.S.C. § 12101 et seq.). (See
Taylor v. Pathmark Stores, Inc. (1999) 177 F.3d 180, 182-183 [generally, employer’s
innocent mistake in regarding plaintiff as disabled from working is sufficient to subject
employer to liability under the ADA, but recognizing “a limited defense of reasonable
mistake where the employee is responsible for the employer’s erroneous perception”].)

                                             13
which was added to the FEHA in 2000 when the Legislature enacted the Prudence Kay
Poppink Act. (Stats. 2000, ch. 1049, §§ 1, 6.) That act made substantial changes to the
disability discrimination provisions of the Unruh Civil Rights Act (Civ. Code, § 51, et
seq.) and the FEHA.
       As relevant to this appeal, the Legislature declared that California’s definitions of
physical disability, mental disability, and medical condition are broad and are intended to
be construed to protect employees and applicants “from discrimination due to an actual or
perceived physical or mental impairment that is disabling, potentially disabling, or
perceived as disabling or potentially disabling.” (§ 12926.1, subd. (b).)11 The term
“perceived” has some bearing on the employer’s state of mind or motive, an issue in this
appeal. The Legislature also declared that the statutory definitions of physical and mental
disability “provide protection when an individual is erroneously or mistakenly believed to
have any physical or mental condition that limits a major life activity.” (§ 12926.1, subd.
(d), italics added.) The phrase “erroneously or mistakenly believed” also is relevant to
the state of mind or motive of an employer that is alleged to have discriminated against
someone with a physical or mental disability.
       In contrast to mistaken beliefs about an employee’s disability, an employer’s
honest but mistaken belief in legitimate reasons for an adverse employment action can
preclude liability in other discrimination contexts, such as race, age or sex. (Guz, supra,
24 Cal.4th at p. 358; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 170-171.)
              3.      Definition of Physical Disability
       This appeal involves issues relating to Wallace’s physical condition and, therefore,
we set forth the pertinent parts of the FEHA’s definition of physical disability:

11     Currently, the terms “medical condition,” “mental disability,” and “physical
disability” are defined in subdivisions (i), (j) and (m) of section 12926. The related
concepts of “essential functions,” “reasonable accommodation,” and “undue hardship”
are defined in subdivisions (f), (p) and (u) of section 12926.

                                             14
       “(m) ‘Physical disability’ includes, but is not limited to, all of the
       following:

       “(1) Having any physiological disease, disorder, condition … that does both
       of the following: [¶] (A) Affects one or more of the following body
       systems: neurological, immunological, musculoskeletal ... [¶] (B) Limits a
       major life activity. For purposes of this section:

               “(i) ‘Limits’ shall be determined without regard to mitigating
       measures such as medications, assistive devices, prosthetics, or reasonable
       accommodations, unless the mitigating measure itself limits a major life
       activity.

               “(ii) A physiological disease, disorder, condition … limits a major
       life activity if it makes the achievement of the major life activity difficult.

             “(iii) ‘Major life activities’ shall be broadly construed and includes
       physical, mental, and social activities and working. [¶] … [¶]

       “(4) Being regarded or treated by the employer or other entity covered by
       this part as having, or having had, any physical condition that makes
       achievement of a major life activity difficult. (§ 12926, italics added.)
       Paragraph (4) of this definition implements the Legislature’s intent to protect
individuals “erroneously or mistakenly believed to have any physical or mental condition
that limits a major life activity.” (§ 12926.1, subd. (d); see Stats. 2000, ch. 1049, §§ 5, 6.)
       C.     Other Terms Essential to the Disability Discrimination Claim
       Our overview of disability discrimination claims under section 12940, subdivision
(a) ends with the definition of two statutory terms related to the employer’s motivation—
specifically, “to discriminate against” and “because of.” Under subdivision (a) of section
12940, it is an unlawful employment practice for an employer “to discriminate against
[an employee] in compensation or in terms, conditions, or privileges of employment”
“because of” the employee’s physical disability, unless the difference in treatment is
“based upon a bona fide occupational qualification.” (§ 12940, subd. (a), italics added.)
The FEHA defines many words and phrases, but it does not define “discriminate” or
“because of.” (See §§ 12925, 12926.)

                                              15
              1.     Meaning of Discriminate
       In the absence of a statutory definition, we turn to the ordinary meaning of the
words. Black’s Law Dictionary (9th ed. 2009) defines “discrimination” as “[d]ifferential
treatment; esp., a failure to treat all personal equally when no reasonable distinction can
be found between those favored and those not favored.” (Id. at p. 534.) “Differential
treatment” is consistent with how courts have described discrimination in cases involving
the disparate treatment (as opposed to disparate impact) type of employment
discrimination. An employer “discriminates” when it treats the employee differently
“because of” a factor listed in the FEHA. (E.g., Clark v. Claremont University Center
(1992) 6 Cal.App.4th 639, 658, fn. 3 [disparate treatment is easily understood—the
“‘“employer simply treats some people less favorably than others because of their race,
color, religion, sex or national origin”’”].) Accordingly, we conclude that, as used in
subdivision (a) of section 12940, the term “to discriminate” means to treat differently.
       Our discussion of the meaning of “discriminate” would not be complete without
noting that “discriminate” often is used in a negative or pejorative sense and, when so
used, a person who discriminates against one individual in favor of another is regarded as
having committed a wrong. (Black’s Law Dict., supra, at pp. 534-535.) Taking this
approach in a disability discrimination case can lead to error because treating a physically
disabled person differently from persons who are not disabled is not automatically wrong.
Our Supreme Court recognized this idea by stating that, “in disability discrimination
actions, the plaintiff has not shown the defendant has done anything wrong until the
plaintiff can show he or she was able to do the job with or without reasonable
accommodation.” (Green v. State of California (2007) 42 Cal.4th 254, 265 (Green).)
The following illustrates that discriminating against (i.e., treating differently) a physically
disabled person sometimes is legitimate, even desirable. Suppose a taxi company is
hiring new drivers. The company has a legitimate reason to treat applicants with 20/20


                                              16
vision differently from applicants who are blind. Thus, when discussing disability
discrimination, discriminatory reasons cannot automatically be regarded as illegitimate.
       Consequently, the many disparate treatment cases that use the phrase “legitimate
nondiscriminatory reasons” with reference to an employment decision (e.g., Duran v.
U.S. Bank National Assn. (2014) 59 Cal.4th 1, 36) should not be read as implying that
there are never legitimate discriminatory reasons for an adverse employment action in a
case involving disability. The FEHA itself recognizes that employers have legitimate
reasons for discriminating against disabled persons (i.e., treating them differently)—
reasons that have no parallel when the discriminatory employment action is based on
race, religion, national origin, age or sex. Those legitimate reasons include whether a
disabled employee, even with reasonable accommodation, can perform essential job
duties and do so safely. (§ 12940, subd. (a)(1); see Green, supra, 42 Cal.4th at p. 265;
CACI No. 2544 [affirmative defense – health of safety risk].) In addition, an employer
has a legitimate reason for not providing an accommodation “that is demonstrated by the
employer … to produce undue hardship … to its operation.” (§ 12940, subd. (m); see §
12926, subd. (u) [definition of undue hardship]; CACI No. 2545 [affirmative defense --
undue hardship].)
              2.     Meaning of “Because Of”
       Under subdivision (a) of section 12940, it is unlawful for an employer “to
discriminate against” an employee “because of” the employee’s physical disability. The
phrase “because of” is ambiguous as to the type or level of intent (i.e., motivation) and
the connection between that motivation and the decision to treat the disabled person
differently. This ambiguity is closely related to County’s argument that it is liable only if
motivated by discriminatory animus.
       The statutory ambiguity in the phrase “because of” was resolved by our Supreme
Court about six months after the first jury trial. (Harris, supra, 56 Cal.4th 203 [meaning

                                             17
of “because of” for purposes of § 12940, subd. (a)].) Accordingly, the trial court and
counsel did not have the benefit of the Harris decision or the subsequent modifications to
CACI No. 2540 (Disability Discrimination—Disparate Treatment—Essential Factual
Elements) and CACI No. 2507 (“Substantial Motivating Reason” Explained).
          In Harris, the plaintiff was a bus driver who alleged she was fired because of her
pregnancy. (Harris, supra, 56 Cal.4th at p. 211.) The city claimed she was fired for poor
job performance. (Ibid.) The trial court used CACI No. 2500 to instruct the jury that the
plaintiff had to prove her pregnancy was a “motivating factor/reason for the discharge.”
(Harris, supra, at p. 213.) The Supreme Court addressed the meaning of the statutory
phrase “because of” to answer the question of what the trier of fact is to do “when it finds
that a mix of discriminatory and legitimate reasons motivated the employer’s decision.”
(Id. at p. 215.) The court held that the jury should have been instructed to determine
whether discrimination was “‘a substantial motivating factor/reason.’” (Id. at p. 232,
italics added.) Based on this statutory interpretation, the court concluded the jury
instruction requiring the plaintiff to prove discrimination was merely “‘a motivating
factor/reason’” for her termination was erroneous. (Ibid.) The court heightened the
standard for the link between the employer’s consideration of the employee’s disability
and the adverse action taken by the employer to help ensure “that liability will not be
imposed based on evidence of mere thoughts or passing statements unrelated to the
disputed employment decision.” (Ibid.) The court explained that the newly adopted
substantial-motivating-factor test could be met and employers exposed to liability “even
if other factors would have led the employer to make the same decision at the time.”
(Ibid.)
          We note that the court in Harris discussed the employer’s motivation and the link
between the employer’s consideration of the plaintiff’s physical condition and the
adverse employment action without using the terms “animus,” “animosity,” or “ill will.”

                                               18
The absence of a discussion of these terms necessarily implies an employer can violate
section 12940, subdivision (a) by taking an adverse employment action against an
employee “because of” the employee’s physical disability even if the employer harbored
no animosity or ill will against the employee or the class of persons with that disability.
       Based on Harris, we conclude that an employer has treated an employee
differently “because of” a disability when the disability is a substantial motivating reason
for the employer’s decision to subject the employer to an adverse employment action.
This conclusion resolves how the jury should have been instructed on the County’s
motivation or intent in connection with the disability discrimination claim.
II.    INSTRUCTIONAL ERROR—INTENT TO DISCRIMINATE
       A.     The Jury Instruction on Discriminatory Intent
       Wallace contends the first jury found against him on his disability discrimination
claim due to instructional error involving the element of discriminatory intent. That
element was addressed by an instruction stating Wallace was required to prove “that the
County of Stanislaus regarded or treated Dennis Wallace as having a disability in order to
discriminate and such wrongful discrimination was a motivating reason for the adverse
employment action.”12 In accordance with this instruction, the fourth question of the
special verdict asked: “Did the County of Stanislaus regard or treat Dennis Wallace as
having a physical disability in order to discriminate?” The jury answered “No,” which
decided the disability discrimination cause of action in favor of County.




12     The trial court also instructed the jury on (1) the other elements of the claim; (2)
the meaning of “perceived,” “adverse employment action,” “substantial factor,” and
“essential job duties”; and (3) County’s defense that Wallace was unable to perform his
job without endangering the health or safety of himself or others.

                                             19
       B.     Trial Court’s Modification of CACI
       The trial court and counsel discussed the jury instructions and what the jury should
be told about the employer’s intent to discriminate. That discussion included references
to the version of CACI No. 2540 then in effect, which stated in part:

       “6. [That [name of plaintiff]’s [history of [a]] [e.g., physical condition] was
       a motivating reason for [name of defendant]’s [decision to [discharge/refuse
       to hire/[other adverse employment action]] [name of plaintiff]/conduct];]”
       (CACI No. 2540 (Spring 2013 ed.).)13
       That version of CACI No. 2540 did not use the term “animus” and, except for the
language about “a motivating reason,” did not mention the employer’s intent to
discriminate. The trial court told counsel that it read the case law as requiring employee
plaintiffs to “prove that the actions taken by the employer were done with the intent to
discriminate,” which the court equated with “animus.” The court proposed modifying
CACI No. 2540 to “read that the County took the action in order to discriminate against
the plaintiff.” Counsel for plaintiff disagreed with the proposed language and counsel for
County supported it by arguing that intent and animus has to be shown in any
discrimination cause of action alleging disparate treatment. After counsel stated their
arguments, the court decided to modify the jury instruction to include the language it had
proposed.
       C.     Requisite Intent to Discriminate
              1.     Substantial-Motivating-Reason Test
       We conclude that where, as here, an employee is found to be able to safely
perform the essential duties of the job, a plaintiff alleging disability discrimination can
establish the requisite employer intent to discriminate by proving (1) the employer knew
that plaintiff had a physical condition that limited a major life activity, or perceived him
to have such a condition, and (2) the plaintiff’s actual or perceived physical condition

13     This edition contained the June 2012 revisions to CACI No. 2540.

                                             20
was a substantial motivating reason for the defendant’s decision to subject the plaintiff to
an adverse employment action. As described in part I.C., ante, this conclusion is based
on (1) the interpretation of section 12940’s term “because of” adopted in Harris; (2) our
discussion of the meaning of the statutory phrase “to discriminate against”; and (3) the
guidance provided by the current versions of CACI Nos. 2540 and 2507.
       Therefore, the jury instruction that Wallace was required to prove that County
“regarded or treated [him] as having a disability in order to discriminate” was erroneous.
              2.     Role of Animus
       County has argued emphatically that Wallace was required to show “animus” to
establish County had the requisite intent to discriminate and the trial court’s modification
accurately expressed that requirement. For instance, County’s respondent’s brief
contends the “in order to discriminate” phrase in the jury instruction and special verdict
form “clarified that there must be a causal link between animus and adverse action.”14
County supports this contention about animus with the following argument and authority:

       “To establish a prima facie case of disparate treatment discrimination under
       the [FEHA], generally ‘the plaintiff must provide evidence that (1) he was a
       member of a protected class, (2) he was qualified for the position he sought
       [or] was performing competently in the position he [held], (3) he suffered
       an adverse employment action …, and (4) some other circumstance
       suggests discriminatory motive.’ (Guz [supra,] 24 Cal.4th 317, 355.) The
       elements plaintiff must prove include ‘the existence of discriminatory
       animus and a causal link between it and the challenged action’ to ‘raise a
       presumption of discrimination ….’ (McCaskey v. California State
       [Automobile] Assn. (2010) 189 Cal.App.4th 947, 979 [(McCaskey)], citing
       Guz, supra, 24 Cal.4th at p. 355.) Further, when an employer proffers a
       facially sufficient lawful reason for the challenged employment action, the

14      The word “animus” is ambiguous because it can be interpreted narrowly to mean
“ill will” or “animosity” or can be interpreted broadly to mean “intention.” (Black’s Law
Dict., supra, at p. 103.) In this case, it appears County uses “animus” to mean something
more than the intent described by the substantial-motivating-reason test adopted in
Harris.

                                             21
       question becomes whether the employee has shown, or can show, that the
       challenged action resulted in fact from discriminatory animus rather than
       other causes. (Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95,
       112.)”
       The cases in this quote (1) predated Harris, (2) do not involve disability
discrimination,15 and (3) required circumstantial evidence to prove a discriminatory
motive, which distinguishes them from Wallace’s situation. (See pt. I.B.1, ante.)
       During oral argument, counsel for County referred to Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34 (Gelfo) as a disability discrimination case that required
to plaintiff to prove “animus.” In Gelfo, the court used the word “animus” twice:

       “We agree with Gelfo that, on this record, the first four elements of model
       instruction CACI No. 2540 are established. But no jury has yet had an
       opportunity to resolve the factual issues of animus, harm, and the
       substantiality of Lockheed’s conduct as a factor in causing any harm Gelfo
       may have suffered. Those matters remain to be established by the final
       three elements of CACI No. 2540.” (Gelfo, supra, 140 Cal.App.4th at pp.
       53-54, fns. omitted and italics added.)
       In footnote 14, which was omitted in the preceding quote, the court stated:

       “Gelfo need not show Lockheed ‘had it in for him.’ To support a claim of
       disability discrimination, a plaintiff need only show ‘animus’ directed at the
       disability. (See, e.g., Rodriguez v. Con[A]gra Grocery Products Company
       [(5th Cir. 2006)] 436 F.3d [468,] 480 [ADA].) It is of no moment that the
       employer has no ill will against the plaintiff (or anyone else with a bad
       back).” (Gelfo, supra, 140 Cal.App.4th at p. 54, fn. 14, italics added.)
       The court’s use of the word “animus” should be interpreted in context of the
opinion as a whole. Earlier in the opinion, the court (1) referred to the January 2006
version of CACI No. 2540; (2) stated that the form instruction typically requires the
plaintiff to prove the “[p]laintiff’s physical condition was a motivating reason for the
refusal to hire;” and (3) stated that the form jury instruction was modified to require the

15     Guz and McCaskey involved age discrimination claims and Reeves v. Safeway
Stores, Inc., supra, 121 Cal.App.4th 95 involved a retaliatory discharge claim related to
complains about sexual harassment in the workplace.

                                             22
plaintiff to establish that the “[d]efendant’s belief that plaintiff had a limiting condition
was a motivating reason for the refusal to hire.” (Gelfo, supra, 140 Cal.App.4th at pp.
50-51.) These references to “a motivating reason” and the court’s clear rejection of the
idea that a plaintiff claiming disability discrimination must prove the employer harbored
ill will against the plaintiff or a class of individuals with the same disability suggest the
court used “animus” as the equivalent of motive and not animosity or ill will. Such a
usage of “animus” is consistent with the second definition stated in Black’s Law
Dictionary—namely, “intention.” (Black’s Law Dict., supra, at p. 103.) Therefore,
under our interpretation of the Gelfo decision, its meaning would not change if either
“motive” or “intention” were substituted for the court’s two uses of “animus.”
       Therefore, we do not interpret Gelfo as supporting County’s argument that an
animus or intention exceeding a substantial motivating factor was an essential element of
Wallace’s disability discrimination cause of action. Furthermore, we conclude the Fifth
Circuit also used the term “animus” to mean intention when it stated “we are concerned
under the ADA with animus directed at the disability, and not necessarily with animus
directed at the individual .…” (Rodriguez v. ConAgra Grocery Products Company,
supra, 436 F.3d at p. 480, italics added; see Taylor v. Pathmark Stores, Inc., supra, 177
F.3d at p. 183 [plaintiff alleging disability discrimination under the ADA “need not be the
victim of negligence or malice”].)
       We published our discussion of motive and animus to alert practitioners and other
courts that “animus” is an imprecise term that can cause confusion when used in
disability discrimination cases with direct evidence that the employer’s motive for taking
an adverse employment decision was the plaintiff’s actual or perceived disability. To
avoid this confusion, courts and practitioners would be better served by limiting their use
of the terms “animus” and “ill will” to employment discrimination cases involving proof
of an illegitimate motive by circumstantial evidence. (E.g., Reeves v. Sanderson

                                              23
Plumbing Prod. (2000) 530 U.S. 133, 151 [jury’s verdict in favor of discharged employee
reinstated; employee established a prima facie case of age discrimination, created a jury
issue as to the falsity of the legitimate reasons offered by the employer for his discharge,
and introduced additional evidence that his supervisor was motivated by age-based
animus and was principally responsible for the firing].)
       D.     Prejudice Resulting from Instructional Error
              1.     Basic Principles
       An appellant who shows an instructional error occurred also must establish the
error was prejudicial. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601,
613; Cal. Const., art. VI, § 13 [miscarriage of justice required for reversal].)
       Prejudice or a miscarriage of justice exists when there is “a reasonable probability
that in the absence of the error, a result more favorable to the appealing party would have
been reached.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574 (Soule).) In
cases of instructional error, a reasonable probability that “the jury would have returned a
more favorable verdict” is sufficient to establish prejudice. (Holmes v. Petrovich
Development Co., LLC (2011) 191 Cal.App.4th 1047, 1073; see Code of Civ. Proc.,
§ 475 [reversal is warranted where “a different result would have been probable if” the
instructional error had not occurred].)
              2.     Prejudice Occurred in this Case
       In the present case, the evidence easily demonstrates a reasonable probability that
a properly instructed jury would have found Wallace’s disability was a substantial
motivating reason for County’s decision to remove him from his job as a bailiff. Indeed,
the evidence allows this court to find as a matter of law that Wallace established the
substantial-motivating-reason element of his disability discrimination cause of action.
       Initially, we note that this case involves an employer that claims the employee was
removed from his job because of an inability to perform the job safely. County has not

                                              24
argued that its decision was unrelated to Wallace’s physical condition or the impact of his
physical condition on his ability to perform the duties of a bailiff. County’s argument
that it had legitimate reasons for placing Wallace on a leave of absence was described to
the jury in the following instruction:

       “The County of Stanislaus claims that its conduct was lawful because, even
       with reasonable accommodations, Dennis Wallace was unable to perform
       an essential job duty without endangering his health or safety or the health
       or safety of others. To succeed, the County of Stanislaus must prove the
       following: [¶] That even with reasonable accommodations, Dennis Wallace
       could not perform the duties of a deputy sheriff without endangering his
       health or safety or the health or safety of others to a greater extent than …
       an individual without a disability performing the job duty.”
       The jury clearly rejected County’s argument about safety when it answered “No”
to question No. 3 in the special verdict. That question asked if County had proven that
Wallace would endanger himself or others to a greater extent than an individual without a
physical disability in performing the essential job duties of a deputy sheriff with or
without reasonable accommodation.
       With County’s position about its motive as background, we next address whether
we can find as a matter of law that Wallace’s actual or perceived disability was a
substantial motivating reason for County’s decision to place Wallace on a leave of
absence on January 5, 2011. Prior to oral argument, we requested supplemental briefing
from the parties on this issue. (See § 68081.) County’s supplement brief argues that “the
record demonstrates that the County was acting according to legitimate, non-
discriminatory business interests and a desire to diligently follow the law.” In County’s
view, placing Wallace on leave was “the most reasonable accommodation under the
circumstances, motivated by a desire to follow the law as it relates to reasonably
accommodating employees with disabilities, and to protect the health and safety of
Wallace, his coworkers, and the community he served.”


                                             25
       County’s position suffers from a number of flaws. First, its argument about
“legitimate, non-discriminatory business interests” mischaracterizes its actual position.
In reality, County is arguing that it had legitimate reasons for treating Wallace differently
(i.e., discriminating against him) by placing him on leave.
       Second, County’s version of the facts is contrary to the findings of the first jury.
That jury found (1) Wallace was able to perform the essential job functions of a deputy
sheriff with or without reasonable accommodation and (2) County failed to prove
Wallace would endanger himself or others in performing those essential job functions.
As a result of these findings, what County describes as legitimate business reasons
actually were erroneous reasons based on County’s mistaken belief about Wallace’s
ability to perform his job safely.
       Third, assuming County had described its beliefs accurately and admitted that they
were erroneous, it would have prevailed only if California law considers an employer’s
mistaken beliefs as providing a legitimate reason for treating employees with a perceived
disability differently—that is, subjecting them to adverse employment action. If
County’s position is interpreted as implying such a legal argument, that argument fails.
The Legislature has declared that the FEHA is intended to protect employees “from
discrimination due to an actual or perceived physical or mental impairment.” (§ 12926.1,
subd. (b).) In addition, the Legislature intended to “provide protection when an
individual is erroneously or mistakenly believed to have any physical or mental condition
that limits a major life activity.” (§ 12926.1, subd. (d), italics added.) In light of this
clear expression of legislative intent, County cannot rely on its mistaken beliefs about
Wallace’s physical condition and safety to claim its reasons were legitimate under
California law.
       Fourth, County’s contention that placing Wallace on leave was the most
reasonable accommodation cannot be reconciled with the legal principles applicable to

                                              26
the facts of this case. The jury found that Wallace could perform the essential job
functions of a deputy sheriff, either with or without accommodation. Under California
law, “[w]hen an employee can work with a reasonable accommodation other than a leave
of absence, an employer may not require that the employee take a leave of absence.”
(Cal. Code Regs., tit. 2, § 11068, subd. (c).) Pursuant to this regulation, County’s
decision to place Wallace on a leave of absence cannot be described as a lawful
accommodation of a physical disability.
       In summary, we conclude there is no dispute that County’s motive for placing
Wallace on a leave of absence was its mistaken perception that his physical condition
created a safety issue. It logically follows that County’s perception of Wallace’s physical
condition was a substantial motiving reason for County’s decision to place Wallace on a
leave of absence. Consequently, there is no need for a trier of fact to consider the
substantial-motivating-reason element on remand—it is established as a matter of law.
       E.     Causal Link to Damages
       The next element of Wallace’s disability discrimination claim is whether County’s
decision to place Wallace on a leave of absence was a substantial factor in causing harm
to Wallace. Wallace has sought to recover economic losses (i.e., lost earnings and
benefits) and noneconomic losses (i.e., emotional distress and mental suffering).
              1.     Economic Losses
       It is clear from the record before this court that County’s decision to place Wallace
on an unpaid leave of absence was a cause in fact of Wallace going on leave and, in turn,
going on unpaid leave caused Wallace to suffer adverse economic consequences because
he was no longer performing a paying job. The adverse consequences (i.e., harm)
included Wallace using up his sick leave and vacation time within less than five months
after being placed on leave and thereafter receiving no wages or salary. Based on these
economic consequences, we are able to find as a matter of law that the decision to place

                                             27
Wallace on a leave of absence was a substantial factor in causing him to lose wages and
benefits that would have been earned if he had continued to work as a sheriff’s deputy.
Consequently, on remand, a reasonable trier of fact could not rationally find that there is
no causal connection between the adverse employment action and the economic losses
suffered by Wallace while on leave. However, a trier of fact will need to determine the
amount of Wallace’s economic losses.
              2.      Noneconomic Losses
       As to Wallace’s claim that he suffered noneconomic losses in the form of mental
suffering and emotional distress, there is a factual dispute about whether Wallace
experienced any mental suffering and emotional distress and, if he did, whether County’s
decision to place Wallace on a leave of absence was a substantial factor in causing that
harm. Furthermore, it is not clear from the record and briefing whether Wallace is
claiming future noneconomic losses. Therefore, we cannot decide these issues regarding
past and future economic losses as a matter of law and, accordingly, they must be
resolved on remand.
       F.     Scope of Retrial
       The largest issue about the scope of the retrial is whether the first jury’s findings
on Question Nos. 1, 2 and 3 of the special verdict should be binding on a retrial of
Wallace’s disability discrimination cause of action. We requested supplemental briefing
on this issue and referred the parties to the following legal standard and authority:

       “It is a firmly established principle of law that ‘[t]he 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.’ [Citation.] The underlying rationale is easy to discern: to
       require a complete retrial when an issue could be separately tried without
       prejudice to the litigants would unnecessarily add to the burden of already
       overcrowded court calendars and could be unduly harsh on the parties.”
       (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776;
       see Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801; see Code

                                             28
       Civ. Proc., § 43 [“courts of appeal … may … direct a new trial or further
       proceedings to be had].)
       The parties appear to accept the fundamental principle that prejudice to the
litigants should be avoided and the inquiry into prejudice includes examining the
possibility that confusion or uncertainty would result from a limited retrial. County
argues a full retrial is necessary and contends the fundamental principles about prejudice
and avoiding confusion and uncertainty were explained by the following statements in
Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655 (Bullock):

       “Whether an issue can be tried separately without prejudice to any party
       depends on the particular circumstances of each case. [Citation.] Any
       doubts as to whether a new trial limited to damages is appropriate should be
       resolved in favor of a complete new trial.” (Id. at pp. 696-697.)
       We note that the court in Bullock followed its statement about any doubts by
observing:

       “The question whether a limited new trial is appropriate typically arises in
       cases involving excessive or inadequate compensatory damages. [Citation.]
       A new trial limited to determining the amount of compensatory damages
       ordinarily is proper unless the record indicates that the finding of liability
       resulted from a compromise verdict, in which case the new trial should
       encompass both liability and damages.” (Bullock, supra, 159 Cal.App.4th
       at p. 697.)
       Guided by the foregoing principles and our ability to make findings as a matter of
law on the elements of substantial-motivating-reason and the causal link between
County’s decision to place Wallace on a leave of absence and economic losses suffered
by Wallace, we conclude that the scope of the retrial can be limited to issues relating to
damages. Any confusion that might result from a potential retrial of Wallace’s other
three causes of action can be avoided because the retrial need not include those claims.
The parties have agreed that, if the retrial of the first cause of action is limited to issues
involving damages, there is no need to retry the other three causes of action. In
particular, Wallace’s supplemental letter brief explicitly acknowledged that the damages

                                               29
that he might recover under those three causes of action would be redundant to those
recovered under his disability discrimination claim.    Therefore, we conclude that
prejudicial confusion and uncertainty will be avoided by a retrial of the first cause of
action limited to determining (1) the amount of Wallace’s economic damages and (2) the
existence and amount of noneconomic damages caused by County’s decision to place
him on a leave of absence on January 5, 2011, and not returning him to duty until January
30, 2013.

       G.     Other Issues*
       Based on our conclusions about the limited scope of the retrial, it is not necessary
for this court to address the claims of error related to the second jury trial and Wallace’s
causes of action for failure to reasonably accommodate his disability, failure to engage in
the interactive process, and failure to prevent discrimination. Nevertheless, for the sake
of providing the parties a better understanding of this case, we note that our earlier
rejection of County’s argument that a leave of absence was a reasonable accommodation
in the circumstance of this case (see pt. II.D.2, ante) necessarily implies instructional
error occurred in the second jury trial. In particular, the second jury was instructed that
“reasonable accommodation” could include providing the employee with accrued paid
leave or additional unpaid leave. The instruction was prejudicially misleading because it
was an incomplete statement of the law regarding reasonable accommodation and leaves
of absence. (Cal. Code Regs., tit. 2, § 11068, subd. (c) [“When an employee can work
with a reasonable accommodation other than a leave of absence, an employer may not
require that the employee take a leave of absence”]; see generally, Befort, The Most
Difficult ADA Reasonable Accommodation Issues: Reassignment and Leave of Absence
(2002) 37 Wake Forest L.Rev. 439.)


*      See footnote, ante, page 1.

                                             30
       As to Wallace’s claim that the issue preclusion doctrine should have been applied
to the first jury’s findings in any retrial of the remaining causes of action, we note that
those findings were not final when the trial court ruled on the issue preclusion question.
However, those findings will become final upon the issuance of remittitur by this court
because County did not challenge them by filing a protective cross-appeal. In light of the
fluid nature of “finality,” this court would not have analyzed the trial court’s decision, but
would have independently applied the elements of California’s issue preclusion doctrine
to reach a determination whether to treat the first jury’s findings as binding in any retrial
of Wallace’s other three causes of action. It appears that a subsequent jury asked to
decide those other three causes of action might be confused by the first jury’s finding that
Wallace was able to perform the essential job functions of a deputy sheriff with or
without reasonable accommodation because the subsequent jury would not know whether
the first jury determined a reasonable accommodation was unnecessary or, alternatively,
there was a reasonable accommodation that would have allowed Wallace to safely
perform the duties of a sheriff’s deputy. Also, in the latter situation, the subsequent jury
would not know what that accommodation was.
       Lastly, we do not address Wallace’s request for attorney fees under section 12965
because we have not directed the trial court to enter judgment in Wallace’s favor and,
therefore, he currently does not qualify under the statute as a prevailing party. (See
Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 975 [under § 12965, subd. (b), trial
court has discretion to award attorney fees to prevailing party in FEHA action].)
                                      DISPOSITION
       The judgment is reversed and the matter is remanded to the trial court for further
proceedings for damages on Wallace’s first cause of action for disability discrimination,
consistent with the scope of retrial described in part II.F of this opinion and the findings
this court has made as a matter of law.

                                              31
     Wallace shall recover his costs on appeal.

                                                  _____________________
                                                            FRANSON, J.
WE CONCUR:


 _____________________
KANE, Acting P.J.


 _____________________
POOCHIGIAN, J.




                                          32
POOCHIGIAN, J. – CONCURRING.
          I concur in the court’s opinion and judgment, but write separately to underscore an
important limitation on the scope of Government Code1 section 12940’s definition of
disability discrimination.
          The court’s opinion expresses the following rule of law:

          “We conclude that where, as here, an employee is found to be able to safely
          perform the essential duties of the job, a plaintiff alleging disability
          discrimination can establish the requisite employer intent to discriminate by
          proving (1) the employer knew that plaintiff had a physical condition that
          limited a major life activity, or perceived him to have such a condition, and
          (2) the plaintiff’s actual or perceived physical condition was a substantial
          motivating reason for the defendant’s decision to subject the plaintiff to an
          adverse employment action.” (Maj. opn., ante, at p. 20.)
          This holding indicates that negating section 12940, subdivision (a)(1) is a
sufficient condition to establish disability discrimination under the California Fair
Employment and Housing Act (FEHA) (§ 12900 et seq.), but I write separately to clarify
that it is also a necessary condition. Section 12940, subdivision (a)(1)’s “specific
language unambiguously provid[es] that an adverse employment action on the basis of
disability is not prohibited if the disability renders the employee unable to perform his or
her essential duties, even with reasonable accommodation.” (Green v. State of California
(2007) 42 Cal.4th 254, 264, original italics.) Consequently, in order to establish that an
employer has engaged in disability discrimination under FEHA, an employee must also
show that the “disability would not prevent the employee from performing essential
duties of the job, at least not with reasonable accommodation.” (Green, supra, at p. 262.)
Because the employee bears the burden of proof on this issue (id. at pp. 263264), there
is no reason to exclude it as a coequal element required to establish disability
discrimination.

          1   All further statutory references are to the Government Code unless otherwise
stated.
       This is not an insignificant issue. Section 12940, subdivision (a)(1) reflects one of
the primary ways disability discrimination differs from other forms of discrimination
under FEHA.2 If our legal standard does not clearly incorporate this important limiting
provision, the reach of FEHA could extend beyond the Legislature’s intent. Consider a
hypothetical with the following facts: (1) an employer is advised by a physician that an
employee’s physical condition renders him or her unable to perform essential job duties
even with reasonable accommodation, (2) the physician’s evaluation is, in fact, correct,3
and (3) the employer removes the employee from the position because of the physical
condition. Under section 12940, subdivision (a)(1), the employer has clearly not engaged


       2  As the court’s opinion notes, physical disability claims are “fundamentally
different” than other discrimination claims. (Maj. opn., ante, p. 11.) The word
discriminate is often used “in a negative or pejorative sense.” (Id. at p. 16.) But
“discriminating against (i.e., treating differently) a physically disabled person sometimes
is legitimate ….” (Ibid.) “The FEHA itself recognizes that employers have legitimate
reasons for discriminating against disabled persons (i.e., treating them differently) –
reasons that have no parallel when the discriminatory employment action is based on
race, religion, national origin, age or sex. Those legitimate reasons include whether a
disabled employee, even with reasonable accommodation, can perform essential job
duties and do so safely. (§ 12940, subd. (a)(1) ….)” (Id. at p. 17.)
        Identifying these differences between disability discrimination and other forms of
discrimination is important. But we should also spell out exactly how these differences
affect the definition of discrimination in the disability context.
       3   Section 12940, subdivision (a)(1) does not deal solely with discriminatory motive
– it is also concerned with the factual reality of plaintiff’s disability. Its language only
protects employers when the employee is actually unable to perform essential job duties
even with reasonable accommodation. The statute does not protect employers that
honestly but mistakenly believe the employee’s disability renders him or her unable to
perform essential job duties even with reasonable accommodation.
       This statutory reality could discourage employers from reassigning employees
who they honestly and reasonably believe, based on medical opinion, pose a danger to
themselves or others. If such an employer did reassign the employee based on an honest
and reasonable belief, the employer could nonetheless be subject to liability if a jury later
concludes that belief was mistaken.

                                              2
in impermissible discrimination. The legal test for establishing disability discrimination
should reflect this reality.
       Consequently, the complete standard in the disability context is that an employer
discriminates in violation of section 12940, when (1) the employer knew or perceived
plaintiff as having a physical condition that limited a major life activity, (2) the plaintiff’s
actual or perceived physical condition was a substantial motivating reason for the
employer’s action, and (3) the substantial motivating reason was something other than the
fact that the physical condition actually rendered the plaintiff (a) unable to perform
essential job duties whatsoever even with reasonable accommodation or (b) unable to
perform essential job duties safely with reasonable accommodation.
       Section 12940, subdivision (a)(1) is not ancillary. Rather, it is an important aspect
of what constitutes disability discrimination under section 12940, and should be
considered one of the three indispensable components of disability discrimination.


                                                           __________________________
                                                           Poochigian, J.




                                               3
