E034568.DOC - Filed CERTIFIED FOR PARTIAL PUBLICATION IN...

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Filed 8/24/05 CERTIFIED FOR PARTIAL PUBLICATION * IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO DWIGHT D. GREEN, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Appellant. E034568 (Super.Ct.No. RCV 60816) OPINION APPEAL from the Superior Court of San Bernardino County. Ernest G. Williams, Judge. (Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed in part; reversed in part with directions. Bill Lockyer, Attorney General, Jacob Appelsmith, Senior Assistant Attorney General, Elizabeth Hong, Supervising Deputy Attorney General, and Michelle Logan- Stern, Deputy Attorney General, for Defendant and Appellant. Pine & Pine, Norman Pine, Beverly Tillett Pine; Law Offices of David H. * * Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for partial publication with the exception of sections 5, 6, 7, 8, and 9. 1
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Greenberg and David H. Greenberg for Plaintiff and Appellant. 1. Introduction Plaintiff Dwight D. Green worked for defendant, the State of California, as a stationary engineer at a correctional facility for over 12 years before he was placed on disability retirement. The jury found that, in failing to provide plaintiff with reasonable accommodation for his Hepatitis C, defendant discriminated against plaintiff in violation of the Fair Employment and Housing Act (the FEHA). (Gov. Code, § 12900 et seq.) 1 The jury awarded plaintiff $597,088 in economic damages and $2,000,000 in noneconomic damages, which the court reduced to $1,800,000. In challenging the jury’s verdict, defendant raises the following claims: the jury’s verdict was not supported by the evidence; the decision of the workers’ compensation judge barred plaintiff’s disability discrimination claim; the court abused its discretion in excluding evidence of the Workers’ Compensation Appeals Board (the Appeals Board) proceeding and the testimony of Dr. Alvin Markovitz, the qualified medical examiner for the administrative proceeding; the court erred in instructing the jury on the elements of the prima facie case and the defenses; and the award of $2,000,000 in noneconomic damages was excessive. In his cross-appeal, plaintiff claims the trial court exceeded its authority in reducing the noneconomic damages and abused its discretion in denying the requested amount of attorneys fees. Defendant’s challenges to the sufficiency of the evidence and the instructions 1 All further statutory references will be to the Government Code unless otherwise stated. 2
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require that we decide whether the trial court correctly placed upon defendant the burden of establishing that plaintiff was incapable of performing his essential functions with reasonable accommodations, as required under section 12940, subdivision (a). We conclude that it was defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case.
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  • Spring '14
  • AntonioBaez
  • Discrimination, Legal burden of proof, Prima facie

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