Beverly Myres was hired by the San Francisco Housing Authority (SFHA) in 2006 as a claims assistant. In 2007 she was promoted to workers’ compensation analyst. Myres was a member of the San Francisco Municipal Executives’ Association, and her employment with SFHA was governed by a union memorandum of understanding (MOU).
In 2009, Myres injured her right knee at work and filed a workers’ compensation claim in June 2009. She continued to work full-time without any restrictions until she had surgery on her right knee, Myres was then released to return to modified work with the following restrictions: “Seated work – stand/walk for personal needs only. No lift over 10 lbs. No drive for work. Must work in location free from tripping hazards.” Her employer indicated it would accommodate her restrictions.
Upon returning to work she experienced increased pain in her left knee. It was at first disputed that the left knee was injured as a result of employment. While seeking clarification of the cause of her left knee pain SFHA had advised the entire department that they were being laid off as a result of departmental restructuring. Myres then sued SFHA. Her first three causes of action are each titled “Disability Discrimination.” and she filed a fourth and fifth cause of action for hostile work environment harassment and wrongful discharge in violation of public policy premised on her allegations of retaliation for taking workers’ compensation leave.
According to SFHA, Myres and the rest of the department were laid off for a legitimate reason, “to restructure the department for improved efficiency” and due to reduced federal funding and a budget shortfall. Myres, on the other hand, asserted that SFHA retaliated against her for taking workers’ compensation leave. In support of this contention she called SFHA’s former special assistant to the executive director, who testified that “[t]here were a number of people in the department . . . that [her supervisors] were having trouble with. So they decided to deal with the problem by restructuring and laying everybody off.” As a result of the layoff, Myres testified that she suffered a loss of her annual salary of approximately $81,000 for almost three years, as well as fringe and retirement benefits.
After trial, the jury returned verdicts in favor of the employer on four of the five causes of action. With respect to hostile work environment harassment, the jury found in Myres’s favor and awarded her $35,000 in noneconomic damages. Post judgment interest was awarded in the amount of 10% and Myers was awarded attorney fees and costs. Both parties appealed. SFHA primarily contends on appeal that that the jury’s harassment verdict is not supported by substantial evidence. Myres also appeals from the judgment, arguing that various evidentiary and instructional errors affected the jury’s verdicts in favor of SFHA on her causes of action for failure to reasonably accommodate her disability. With the exception of post judgment interest in the amount of 10%, the Court of Appeal found no prejudicial errors, and after reducing the interest to 7% affirmed the judgment in the unpublished case of Myres v SFHA.
One of the issues raised by Myres was the collateral source rule. Myres filed a motion in limine to exclude evidence of collateral sources of income. She argued that any such evidence of post injury sources of income was irrelevant, as it could not be used to offset a backpay award on her retaliation and wrongful discharge causes of action. The trial court denied the motion. Over Myres’s “collateral source” objection, SFHA’s expert economist detailed the payments Myres received from retirement, social security disability, and worker’s compensation disability between September 1, 2010, and the date of trial. Ultimately, he opined that there was only a $500 difference between Myres’s expected compensation, had she remained employed by SFHA, versus the compensation she received in retirement and disability benefits after separation.
The Court of Appeal agreed that some of the collateral source income should not have been admitted. However, it was not prejudicial error. “In this case, however, we find it unnecessary to remand for a new trial. Under section 12940, subdivision (h), it is an unlawful employment practice ‘[f]or any employer . . . to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.’ We agree with SFHA that, as a matter of law, Myres could not recover for FEHA retaliation on the basis that she was terminated for taking workers’ compensation leave. Taking workers’ compensation leave is not protected activity under FEHA.” Thus the verdicts against her on the discrimination causes of action were affirmed.
But, the Court of Appeal agreed there was evidence in support of her claim of a hostile work environment. Her employer made comments before her injury such as “that other SFHA employees taking workers’ compensation leave were “malingerers,” abused the system, and filed “fraudulent claims.” Another comment was “How can the workers’ comp person be out on workers’ comp?”