Filed 5/20/21 Martinez v. So. Cal. Edison CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CYNTHIA MARTINEZ,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA EDISON

COMPANY,

Defendant and Respondent.

D078061

(Super. Ct. No. CIVDS1723979)

APPEAL from a judgment of the Superior Court of San Bernardino 

County, Bryan F. Foster, Judge. Affirmed.

Marcus Jackson for Plaintiff and Appellant.

Tanya A. Guzman for Defendant and Respondent.

Cynthia Martinez sued her employer, Southern California Edison

Company (SCE), claiming SCE failed to accommodate her panic disorder 

disability and engage in a good faith interactive process. After a trial, the 

jury found she did not prove either claim, and the court entered judgment in 

SCE’s favor. The court later denied Martinez’s motion for judgment 

notwithstanding the verdict (JNOV). 
2

On appeal, Martinez contends the court erred by denying her JNOV 

motion and refusing several of her proposed special instructions. We affirm. 

Martinez did not meet her appellate burden to show prejudicial instructional

error or that the court erred in denying her JNOV motion.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Summary1

In 2007, Martinez had a severe panic attack while driving on the 

freeway. She then avoided freeway driving whenever possible. 

Two years later, in 2009, Martinez began working for SCE as a 

business analyst in SCE’s Rancho Cucamonga office, which was six miles 

from where she was living.

Five years later, in June 2014, Martinez transferred to a different 

business analyst position with SCE’s vegetation management division. This 

division is responsible for keeping trees and other vegetation away from 

power lines. She was assigned to work in SCE’s San Bernardino office in its 

vegetation management resource center. At the time she lived in Fontana, 

which was about nine miles from the San Bernardino office. She commuted 

to work using surface streets. 

For the next 12 years, Martinez continued to work in the same position 

in the San Bernardino office. Then during spring 2016, she and her husband 

discussed moving to Murrieta, which would result in a substantially longer 

commute of more than 45 miles each way.

Before the move, in April 2016, Martinez asked her supervisor whether 

she could relocate to a closer office if she moved to Murrieta. She did not say 

1 Under settled appellate rules, we summarize the evidence in the light 

most favorable to the jury verdict. (See Collins v. County of San Diego (2021) 

60 Cal.App.5th 1035, 1048 (Collins).) 
3

anything about a disability. Her supervisors did not approve the relocation 

because they found her job duties required she physically remain with her 

work team and the paper files. But they expressed willingness to adjust her 

start and stop times to help with the commute. 

Four months later, in August 2016, Martinez and her husband 

purchased a new home in Murrieta. She testified their motivation for 

making the move was “two-fold”: (1) her husband’s job location might move 

to the Murrieta area (it eventually did not move); and (2) she had not had a 

panic attack “in years” and she felt the move would provide her with a “good 

opportunity” to use “exposure therapy” and see whether she had overcome 

the problem. She said the move would provide “an opportunity for me to 

learn from what was bothering me” and “face [my] fears” about freeway

driving. Martinez acknowledged she did not visit the new house until the 

escrow period, nor did she ever “practice[ ]” the drive from Murrieta to the 

San Bernardino office, or consult with a doctor about her panic disorder 

before making the move.

She testified that when she first visited the house during escrow, she

experienced panic symptoms while she was on the freeway. She thus exited

the freeway and used side streets. 

After escrow closed, on her first day back to work, on August 22, she 

asked her supervisor to be relocated (with the same job) to an SCE office

closer to her new home (either SCE’s Wildomar or Menifee office). This time 

she based her request on the fact that she suffered panic attacks when 

driving on the freeway during her new commute. She gave her supervisor an 

August 11, 2016 letter from her doctor, stating he has been treating Martinez 

for the past two months for “anxiety disorder” and he recommends she “avoid 

situations that may aggravate her anxiety symptoms or panic attacks.” He 
4

said that Martinez “reports that driving a vehicle for long distances, 

especially on the freeways, causes her to have increased anxiety and possibly 

result in panic attacks,” and therefore he “recommend[s] that her job be 

located close to her home . . . .”

Martinez’s supervisor responded that she must follow SCE policy by 

requesting work accommodations through Sedgwick, a third party disability 

claims administrator. Martinez replied, “I was hoping that I would not have 

to go through a formal process and that my group would just relocate me. 

But I am gathering that this is not the direction that we are going. I will 

contact Sedgwick today.” 

Martinez then submitted a disability claim to Sedgwick, asking to be 

relocated to an office closer to her new home based on her panic disorder

condition. She testified she found her commute to the San Bernardino office 

to be “hellish” and it made her anxious all the time because of the stress of 

thinking about the commute and the possibility of a panic attack. 

Under governing policies, Sedgwick then communicated Martinez’s 

request to her supervisors and individuals within SCE’s human resources 

and disability management divisions. 

These individuals gave serious consideration to Martinez’s request.

Carol Wood, manager of the disability management unit, urged Martinez’s 

supervisors to consider trying to accommodate her request, but expressed 

understanding that an accommodation may not be possible given the nature 

and type of work performed by Martinez and the vegetation management

team.

After a full consideration of Martinez’s request, her supervisors denied 

the request because they found Martinez could not complete or perform her 

core work if she was to relocate to another location. This determination was 
5

based on two considerations. First, the supervisors determined that at least 

75 percent of her tasks required Martinez to work at the San Bernardino 

facility with physical files that occupy close to 200 filing cabinet drawers. 

Second, the supervisors found Martinez’s duties required she have 

“continuous collaboration with and instruction from” two other analysts who 

worked with Martinez in the San Bernardino facility. The supervisors 

concluded that Martinez’s “physical presence” at the San Bernardino facility 

was “fundamental” to her job. 

Martinez then contacted Deborah Goodwin, who worked in SCE’s 

disability management unit, and Martinez expressed disagreement with her 

supervisors’ decision. In an email, Goodwin responded that the reason for the 

denial was that SCE “does not offer job accommodations for getting to work.” 

But Goodwin (who was supervised by manager Wood) testified she had not 

spoken with Martinez’s supervisors before sending this email and testified 

that SCE had no policy with regard to whether it would accommodate a 

commute. 

In her email, Goodwin proposed various alternatives for assisting 

Martinez’s commute, including carpooling or vanpooling or changing work 

schedules to help with commute times. Goodwin also informed Martinez that 

if she “had a condition that flares up, you may also open an intermittent 

FMLA [Family Medical Leave Act] claim to provide . . . time off of work,” 

noting that FMLA “can provide up to 480 hours of protected time off [and] 

can provide protection for you in the event you have a flare [up] and need to 

miss a day of work or just a couple of hours.” She also noted that if these 

options were not viable and Martinez needed to take additional time off work, 

she “may need to open a disability claim through Sedgwick.” 
6

Martinez responded that Goodwin’s suggestions were not “acceptable 

alternatives” for her. Martinez testified she never explored the possibility of

a vanpool or carpool because she did not believe those alternatives would 

work. She claimed her panic symptoms occurred whether she was the driver 

or passenger.

Martinez then continued to request that SCE reconsider its decision. 

She repeatedly complained to her supervisors about the difficulty of having to 

commute 45 miles with her anxiety/panic attack disorder. She wrote a 

lengthy letter to one supervisor, explaining the nature of her anxiety disorder 

and stating she made the decision to move “hoping that somehow, I would be 

able to manage adjusting my drive from an 8 mile side street commute, to a 

45 mile, mostly freeway drive. Unfortunately, I have not experienced the 

results I sought. Each morning and afternoon, I face the knowledge that 

should a panic attack occur, I may not be able to safely control my 

vehicle . . . .” She told her supervisors she disagreed with their conclusions

that the team must remain together for work reasons, asserting she was 

generally assigned different work (weed abatement) from the other team 

members (who worked on line-clearing). As to the physical files, she said “our 

internal pony delivery system could easily transport [the physical files] to any 

desired location.” 

Meanwhile, Martinez continued to commute to work and admitted that 

once she arrived at work she was generally able to fully perform her duties. 

But on a few occasions when she arrived at work she was too upset and 

anxious to work. 

In October 2016, SCE announced the San Bernardino office would be 

closing due to earthquake safety concerns. That decision triggered Martinez 

to reassert her request to relocate to SCE’s Menifee or Wildomar offices that 
7

were closer to her home. Matthew Deatherage, who supervised Martinez’s 

supervisors, denied the request, stating: “[Y]our request to work in a different 

location has been reviewed thoroughly and business needs dictate that it 

cannot be accommodated at this time. . . .” Martinez responded by strongly 

disagreeing with the business justifications, reasserting that she personally 

did not believe she needed to be in the same office as the two coworkers. 

In November 2016, an SCE job was posted for a contracts manager at 

the Wildomar facility. Martinez applied for the job and believed she was 

“very qualified” for the position. Martinez admitted, however, the job would 

have been a promotion. SCE did not give her an interview for this position.

On Tuesday, November 22 (Thanksgiving week), Martinez asked her 

supervisor if she could work out of the Wildomar office the next day to avoid 

“what is more than likely to be a very busy and horrible ride home.” Her 

supervisor denied this request. 

In the next few months, Martinez would often come to work, but had 

many absences. 

In about February 2017, Martinez applied for another SCE open 

position (civil construction analyst) located in the Wildomar office. Eighty-six 

individuals applied for this position, and Martinez was one of six applicants

selected to interview for the position. After the interview, she was ranked 

fourth out of the six applicants, and another candidate was ultimately 

selected. She was later told she was generally qualified for the position, but 

did not have the technical skills needed for the job (including advanced Excel

and MS Access skills). The written job description confirms that these skills 

were required for the job. 

In about March 2017, SCE closed the San Bernardino office (because of 

the earthquake safety issues) and transferred the vegetation management 
8

resource center team to SCE’s Redlands office. All of the physical records

were also relocated to this facility. This office was also about 45 miles from 

Martinez’s Murrieta home.

On the first day she was required to report to the Redlands office, 

March 27, 2017, Martinez arrived at work in a highly emotional state,

“sobbing uncontrollably” throughout the day, and stating she would be 

unable to do this daily commute. SCE made efforts to assist her and help her 

find someone who was willing to drive her home. 

Two days later, Martinez returned to work at Redlands, and said her 

doctor gave her additional medications. Martinez told her supervisor she did 

not want to take time off work and wanted to see if she could make it work 

with the new commute. She said she found a better route that might work. 

But she again asked to relocate to the Menifee office, and her supervisor 

denied this request. 

At about this time, Martinez texted with a coworker in which Martinez 

claimed she was “ok” with the drive, and that she “was sure that she would 

adjust like everyone else.”

Shortly after, Martinez’s attorney filed a discrimination claim with the 

California Department of Fair Employment and Housing. Martinez claimed 

she was discriminated against based on her panic disorder disability. 

A few days later, Martinez again asked her supervisors if she could

relocate to an SCE office closer to her home. She said she had a difficult 

night and the anxiety of the morning’s commute had resulted in abdominal

pains. She reiterated that the drive is “very exhausting and debilitating, due 

to the medically confirmed anxiety disorder from which I suffer.” She said 

that taking FMLA time off results in her getting less pay and having to use 

vacation pay and floating holidays. She said she planned to take her laptop 
9

home with her, and again stated her willingness to work in either the 

Wildomar or Menifee facilities. 

Martinez’s supervisor told her not to take her laptop computer home. 

He explained her work duties and her position as a nonexempt employee 

require her to come into the office to complete her work, “and there is only 

one location where we do this work, and right now it is in the Vegetation

Management Resource Center in Redlands.” He said, “It is our expectation

that you leave [the computer] in your work area in a safe and secure 

location . . . . [¶] If you are unable to come into work, we advise and 

encourage you to use your FMLA as needed. As we’ve discussed for many 

months, we do not want you to get behind the wheel when it is unsafe. . . .”

SCE’s policy was that nonexempt employees were not permitted to bring 

laptops home because employees were under “strict oversight to help ensure 

they report all overtime, get approval for overtime, weren’t expected to 

answer calls after hours, aren’t expected to write and read work-related 

emails when they are not being paid for that.” 

Two months later, in June 2017, Martinez’s doctor advised her that she

should take a leave of absence because of her continued anxiety and mental 

and physical health problems related to the anxiety. Based on this advice, 

she took a leave of absence beginning in June 2017. 

During the next several months while Martinez remained on disability 

leave, SCE’s disability management unit continued to explore the issues 

raised by Martinez’s disability accommodation request and her disability

claims for being off work. In so doing, the unit asked Sedgwick to obtain an 

independent psychiatric evaluation of Martinez. Sedgewick then retained Dr. 

David Block, who met with Martinez and reviewed documents relating to her 

disability claim. 
10

Based on this review, Dr. Block issued a report on August 21, 2017, in 

which he concluded Martinez suffers from a “Panic Disorder,” which is 

“almost entirely related to fears of driving on highways.” He opined that 

based on this diagnosis, during the next four to six weeks, “it is not advisable

that [she] have to travel by car on a freeway to anywhere that she works. 

This claimant is a good candidate for telecommunicating to work, if possible, 

while she gets her anxiety related to freeway driving under better control.” 

He said that Martinez “is able to perform the substantial and material duties 

of her usual occupation,” but advised “that she be allowed to work from home 

or at a site near her home that she can easily get to without getting on 

highways.” He said Martinez’s need to work close to home was temporary

and should be reevaluated after she had the opportunity to work with mental 

health professionals.

After reviewing this report, SCE’s disability management unit made

efforts to determine whether some of Martinez’s work could be temporarily 

performed remotely from the Wildomar office. Disability management 

employee Kathy Campbell performed her own analysis of Martinez’s work 

primarily by reviewing files and speaking with Martinez’s coworkers, and 

concluded that at least on a temporary basis, “the majority of [Martinez’s] 

work is or can be performed via online tools . . . .” Based on this review and 

Dr. Block’s evaluation, Campbell recommended that SCE permit Martinez to 

work at a site close to her home for 90 days and, during that period, evaluate 

whether this work accommodation can satisfy her supervisors’ needs. 

Although Martinez’s supervisors did not believe that all or most of her work 

could be effectively performed in a different office, they agreed some of the 

work could be performed at a remote location. 
11

While this reevaluation was being performed, Martinez filed a lawsuit 

against SCE in the superior court, alleging disability discrimination, 

retaliation, and other related claims. 

Two months later, SCE permitted Martinez to work temporarily in the 

Wildomar office close to her home. She began working in that facility on 

February 9, 2018. Because she did not have access to the physical files, 

Martinez could not, and did not, perform many of her prior duties. 

Additionally, some of Martinez’s job duties had changed in the time since she 

had first requested the accommodation. Martinez admitted at trial that her 

job responsibilities “changed immensely” after she began working in the 

Wildomar office.

In April 2018, SCE made the decision that Martinez could permanently

work from the Wildomar office. 

Trial

Martinez’s complaint alleged five causes of action under the Fair 

Employment and Housing Act (FEHA): (1) disability discrimination; 

(2) failure to accommodate a disability; (3) failure to engage in a good faith 

interactive process; (4) failure to prevent discrimination; and (5) retaliation. 

In February 2019, these claims were tried before a jury. At the time,

Martinez remained a SCE employee.

Martinez’s counsel presented her case primarily through Martinez’s 

own testimony and the testimony and emails of various SCE personnel (who 

were called as adverse witnesses). In her testimony, Martinez described her 

move and the reasons for her move; her initial panic attacks and then her 

ensuing anxiety while driving on the freeways; the difficulty of her commute

to San Bernardino and then Redlands; and her disagreements with her 

supervisors’ conclusions that her work required her to be physically present 
12

at the San Bernardino or Redlands facilities. She claimed she lost 40 percent 

of her salary during the time she was on disability leave (from June 2017 

through February 2018).

In defense, SCE’s presented evidence (summarized above) that the core 

aspects of Martinez’s job required her physical presence at San Bernardino 

and then Redlands, and that its later decision to allow her to relocate was 

based on a determination that some (but not all) of her tasks could be 

performed in a different office and that her work changed when she worked 

from the Wildomar office. 

Martinez did not designate counsels’ opening statements or closing 

arguments as part of the appellate record, and therefore we do not know the 

nature of the theories argued by Martinez’s counsel or SCE’s counsel. 

Before the case was submitted for the jury’s determination, the court 

granted nonsuit on the retaliation and disability discrimination claims, and 

found the failure to prevent discrimination was the same claim as the failure 

to accommodate discrimination. 

Thus, the jury was instructed on two theories of liability: (1) failure to 

reasonably accommodate Martinez’s disability; and (2) failure to engage in an 

interactive process. The court used the standard CACI instructions to define 

and describe the elements of each of these claims. (See CACI Nos. 2541,

2542, 2543, 2599, 2546.) These instructions included an explanation of the 

essential elements of a reasonable-accommodation claim; the meaning of a 

“reasonable accommodation”; examples of reasonable accommodations; 

factors in deciding whether the employee was able to perform the essential 

job duties; and the elements of a failure-to-engage-in-interactive-process 

claim.
13

The court refused to instruct on several special pinpoint instructions 

proposed by both Martinez and by SCE. The court found these instructions

were covered by the CACI instructions, and/or appeared to be “getting into 

too many specifics” and “telling the jury” what it should decide. The court 

said each counsel was free to argue to the jury the points in their proposed 

special instructions, but that the CACI instructions provide a “good 

statement as to what the law is.”

After deliberating for less than two days, the jury returned a

unanimous special verdict in SCE’s favor on both causes of action. 

As to the failure-to-accommodate claim, the jury answered “Yes” to the 

following questions: (1) “Did . . . Martinez have a mental disability that 

limited her ability to travel, breathe and/or work” (italics added); (2) Did 

[SCE] know that . . . Martinez had a mental disability that limited her ability 

to travel, breathe and/or work?” (italics added); and (3) “Was . . . Martinez 

able to perform the essential duties of her job with reasonable 

accommodation for her mental disability?” But the jury answered “No” to the 

question “Did [SCE] fail to provide reasonable accommodations for . . . 

Martinez’s disability?”

As to the failure to engage in interactive-process claim, the jury 

answered “Yes” to the following question: “Did . . . Martinez request that 

[SCE] make reasonable accommodation for her mental disability so that she 

would be able to perform the essential job requirements?” But the jury 

answered “No” to the question, “Was . . . Martinez 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?”
14

Based on the “No” responses on each claim, the court found Martinez 

was not entitled to recover on either cause of action and entered judgment in 

SCE’s favor.

Martinez then moved for a JNOV, arguing the undisputed evidence 

established she proved her claims as a matter of law and that the jury 

“ignor[ed] the clear undisputed facts in the case.” The court denied the 

motion.

On appeal, Martinez challenges the court’s denial of her JNOV motion 

and its refusal to give four of her proposed special instructions. We first 

consider the JNOV motion and then address Martinez’s challenges to the 

court’s rulings on the jury instructions.

DISCUSSION

I. JNOV Motion

A. Review Standards

An appeal from the denial of a JNOV motion “is essentially the same as 

appealing the judgment itself for a lack of substantial evidence.” (IIG 

Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 639.) A trial court may grant 

the motion only if it appears from the evidence, viewed in the light most 

favorable to the party securing the verdict, that there is no substantial 

evidence in support. (Collins, supra, 60 Cal.App.5th at p. 1048.) The court 

must deny the motion if there is any substantial evidence, contradicted or 

uncontradicted, supporting the jury’s verdict. (Ibid.)

On appeal, we consider the issue de novo under the same standards. 

(Collins, supra, 60 Cal.App.4th at p. 1048.) Like the trial court, we may not 

reweigh the evidence or judge witness credibility. (Ibid.; Johnson & Johnson

Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313-314.) We resolve all 

conflicts in the evidence and draw all reasonable inferences in favor of the 
15

verdict. (Collins, at p. 1048.) If the evidence is conflicting or if several 

reasonable inferences may be drawn supporting the jury’s verdict, we must 

affirm the order denying the motion. (Ibid.)

Under these principles, we evaluate Martinez’s challenges to the jury’s 

findings on her (1) failure-to-accommodate claim; and (2) failure-to-engage-ininteractive-process claim.

B. Failure-to-Accommodate Claim

1. Applicable Law

To establish a failure-to-accommodate claim, a plaintiff must prove

(1) she has a disability covered by the FEHA; (2) she can perform the 

essential functions of the position to which accommodation is sought; and 

(3) the employer failed to reasonably accommodate her disability. (Jensen v. 

Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256-257.) The reasonableness 

of an employer’s action is a question of fact that must be decided on a case-bycase basis. (See Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 

374 (Nealy); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 

954.)

Under the FEHA, “ ‘reasonable accommodation’ ” means “ ‘ “a 

modification or adjustment to the workplace that enables the employee to 

perform the essential functions of the job held or desired.” ’ ” (Atkins v. City of 

Los Angeles (2017) 8 Cal.App.5th 696, 719 (Atkins), italics added.) “FEHA 

does not require employers to eliminate essential functions of a job to 

accommodate a disabled employee.” (Ibid.) “The employee’s burden includes 

‘showing he or she can perform the essential functions of the job with 

accommodation, not that an essential function can be eliminated altogether 

to suit his or her restrictions.’ ” (Id. at p. 720.)
16

2. Analysis

The jury found Martinez did not prove SCE failed to reasonably 

accommodate her disability, and thus Martinez could not recover on her 

FEHA failure-to-accommodate claim. Martinez argues this finding is 

unsupported because it is undisputed SCE did not grant her relocation 

request from August 2016 until February 2018. In asserting this argument, 

Martinez improperly disregards SCE’s evidence and misconstrues an 

employer’s obligation when a requested job accommodation precludes the 

employee from performing the essential duties of the position.

SCE presented evidence that Martinez’s relocation would have 

precluded her from performing her essential job duties. Martinez’s direct 

supervisor testified Martinez’s work required that she remain in the same 

location as others who worked for the vegetation management team, and 

therefore her physical presence was needed for her to perform the essential 

functions of her job.2

The supervisor based this decision on facts showing (1) Martinez’s work 

requires she have access to voluminous physical files (that were not available

in electronic form) at the vegetation management resource center at SCE’s 

San Bernardino office (and later at the Redlands office); and (2) the 

importance of working alongside two other team members who also needed 

access to the same files and with whom Martinez was expected to work, 

including to cover their overflow work. We infer from the verdict that the 

jury found this evidence credible, and rejected Martinez’s contrary evidence. 

2 Martinez complains that the supervisor did not use the phrase 

“essential function” in describing her work at the San Bernardino facility. 

However, the substance of his testimony supported this fact.
17

In challenging the jury’s finding, Martinez discusses her own testimony

that she did not believe she needed to be physically present at the San 

Bernardino office. However, as an appellate court, we cannot reweigh the 

evidence or reevaluate the credibility of the witnesses. (Collins, supra, 60 

Cal.App.5th at p. 1048.) Similarly, Martinez’s reliance on SCE employee 

Campbell’s conclusions that a majority of Martinez’s work could be performed 

remotely does not defeat the jury’s factual findings. There is evidence in the 

record showing Campbell conducted only a superficial review of Martinez’s 

duties, was focused mainly on a temporary relocation, and was acting as an 

advocate for Martinez. On this record, the jury had a sound basis to credit 

the testimony of Martinez’s supervisors, rather than Campbell’s conclusions

on this issue.

Martinez alternatively argues the jury was legally required to find the 

requested accommodation was reasonable because SCE eventually granted 

the request. However, SCE presented evidence that it later agreed to permit 

Martinez to work from the Wildomar facility despite that she would not be 

able to perform the essential functions of her prior job. The evidence showed 

that Martinez’s supervisors structured a somewhat different position for 

Martinez where she would not have access to the physical files needed in her 

prior job. SCE’s election to alter the requirements of Martinez’s job does not 

mean its earlier refusal to do so violated the FEHA. Although the jury could 

have agreed with Martinez that SCE’s subsequent decision to permit the 

relocation shows that its earlier conclusions were pretextual, it was not 

required to do so. 

Moreover, the evidence showed that early in the process SCE did offer 

other accommodations that would permit Martinez to continue to perform the 

essential functions of her job, including by altering her commute hours, 
18

allowing her time off when she was feeling anxious about the commute, and 

providing her with carpooling and vanpool options. Although Martinez 

testified she did not believe these were viable options, the jury was entitled to 

find these options could have effectively addressed Martinez’s disability 

issues if she made the effort to try them.

Although not a dispositive factor, the jury was also entitled to consider 

the fact that Martinez’s supervisors first made clear to her that they would 

not approve her relocation request because her work required her to be 

physically present with the physical files and with the other team members. 

Martinez then made the voluntary decision to move 45 miles away. It was 

not until after escrow closed on her new house that Martinez raised the 

disability accommodation request. Thus, it was Martinez’s voluntary actions 

that created, or at least contributed to, the need for an accommodation. As 

discussed in section II.E. below, this factor is a relevant consideration in 

evaluating the reasonableness of an employer’s accommodation actions. 

Further, an employer need not accommodate a disability that is not 

relevant to an employee’s ability to perform the job. Put otherwise, if the 

employee is capable of performing the job despite the disability, the employee 

is not entitled to an accommodation. (See Brumfield v. City of Chicago (7th 

Cir. 2013) 735 F.3d 619, 632-633.) SCE presented evidence that Martinez 

was able to perform the job once she was at the jobsite. This evidence 

included Martinez’s testimony and her statements to the defense’s expert 

that she was able to perform her job duties (although she sometimes left work 

early because of her anxiety in thinking about the commute home). Although 

Martinez also presented contrary evidence—that she was extremely anxious 

and upset on a few occasions when she arrived at work after a difficult drive 
19

and thus could not perform her job—the jury had a reasonable basis to 

decline to credit this evidence. 

In her reply brief, Martinez claims she offered “a mountain of 

testimony and emails regarding numerous occasions where her panic attacks 

were so bad” that she missed work or was too upset to work. In support, she 

cites only two portions of her testimony referring to two specific days in 

which she was upset at work or did not wish to come into the office. It was 

for the jury to evaluate Martinez’s testimony and decide whether she needed 

accommodations to perform the essential portions of her job. 

Martinez alternatively argues the jury was compelled as a matter of 

law to find in her favor on the reasonable accommodations question based on 

her request that she be permitted to work from home “on an as-needed basis.” 

However, the jury had a reasonable basis to find SCE was not required to 

approve this request because—as discussed above—the evidence showed 

Martinez could not perform her essential job duties away from the San 

Bernardino office (and later Redlands office). Additionally, the record does 

not support that Martinez made this general request, or that Martinez’s 

counsel argued this theory to the jury. This evidence shows at most Martinez 

asked to work away from the office a few times, but it does not show that 

Martinez ever made a general request to work away from the office on an “asneeded” basis because of her disability.

Martinez next argues the evidence did not support the verdict on the 

failure-to-accommodate claim because she was not given “preferential” 

consideration for the two other positions for which she applied. 

Under California law, a disabled employee “is entitled to preferential 

consideration of reassignment to a vacant position over other applicants and 

existing employees.” (Cal. Code Regs., tit. 2, § 11068, subd. (d)(5); see Raine 
20

v. City of Burbank (2006) 135 Cal.App.4th 1215, 1223.) However, this 

reassignment obligation does not require the employer to promote the 

employee to a new job with new duties and higher pay. (Atkins, supra,

8 Cal.App.5th at p. 721; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 

1376, 1389; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745.) 

Moreover, “ ‘[a] reassignment . . . is not required if ‘there is no vacant position 

for which the employee is qualified.’ ” (Raine, at p. 1223.)

Under these principles, the jury had a valid basis to find that SCE had 

no obligation to give Martinez preferential treatment for the two open 

positions at the Wildomar office. It was undisputed the first job would have 

been a promotion, and the evidence supported Martinez did not have the 

technical skills to perform the second job.

C. Failure-to-Engage-in-Interactive-Process Claim

Martinez next challenges the sufficiency of the evidence to support the 

jury’s finding that she was unwilling to participate in the interactive process.

In response to a request for a disability accommodation, an employer 

has a duty to “engage in a timely, good faith, interactive process with the 

employee . . . to determine effective reasonable accommodations.” (Gov. Code 

§ 12940, subd. (n).) “[T]he interactive process is designed to bring the two 

parties together to speak freely and to determine whether a reasonable, 

mutually satisfactory accommodation is possible to meet their respective 

needs.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 62.) 

During this time “[b]oth employer and employee have the obligation ‘to keep 

communications open’ and neither has ‘a right to obstruct the process.’ ” 

(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1014.) 

In this case, the jury found Martinez did not meet her burden to prove 

she was willing to participate in an interactive process to identify a 
21

reasonable accommodation to permit her to perform the essential job 

requirements. Substantial evidence supported this finding. 

SCE presented evidence it engaged in efforts to discuss options with 

Martinez to accommodate her disability that made her commute more 

difficult. Those alternatives included carpooling, vanpooling, and shifting 

Martinez’s work hours to make the commute easier. SCE also presented 

evidence that Martinez was unwilling to consider any of these options and 

instead her sole objective was to work closer to her new home. Based on this 

evidence, the jury had a sound basis to find Martinez did not meet her burden 

to show she was willing to participate in a reasonable interactive process. 

Martinez argues the undisputed evidence showed she repeatedly and 

strenuously raised the issue of her disability with her SCE supervisors, and 

therefore posits that she was “[c]learly . . . willing to have a dialog about 

accommodating her driving disability . . . .” However, the fact that she 

repeatedly raised the issue does not mean she was willing to engage in an 

interactive process. The jury had a reasonable basis to conclude that 

Martinez repeatedly raised the issue solely in an effort to convince SCE to 

agree to her proposal—working at a facility closer to her home. A one-sided 

demand—even if it is made numerous times—does not necessarily reflect a 

willingness to reach a reasonable and mutually satisfactory accommodation. 

Martinez argues that SCE failed to satisfy its interactive-process 

obligations because disability manager Campbell did not speak with her 

before performing an analysis of her work. However, Campbell’s role at that 

time was to revaluate Martinez’s requested accommodation (a reevaluation 

that ultimately favored Martinez), and not necessarily to engage in an 

interactive discussion. Moreover, under the special verdict instructions, the 

jury never reached the issue of whether SCE properly engaged in the 
22

interactive process. The jury was first asked whether Martinez proved she

“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?” Based on the “No” answer, the jury 

was told to go no further in the special verdict form.

II. Claimed Instructional Errors

A. Review Standards

Upon request, a party is entitled to correct, nonargumentative 

instructions on every theory of her case that is supported by substantial 

evidence. (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 

39 Cal.App.5th 995, 1021 (Crouch); Rosenfeld v. Abraham Joshua Heschel 

Day School, Inc. (2014) 226 Cal.App.4th 886, 898.) 

However, a “party is not entitled to have the jury instructed in any

particular phraseology and may not complain on the ground that [the]

requested instructions are refused if the court correctly gives the substance of 

the law applicable to the case.” (Hyatt v. Sierra Boat Co. (1978) 

79 Cal.App.3d 325, 335.) The trial court’s duty “is fully discharged if the 

instructions given by the court embrace all the points of the law arising in 

the case.” (Ibid.; see Alamo v. Practice Management Information Corp. (2013) 

219 Cal.App.4th 466, 475 (Alamo).)

“Instructions should state rules of law in general terms and should not 

be calculated to amount to an argument to the jury in the guise of a 

statement of law. [Citations.] [I]t is error to give, and proper to refuse, 

instructions that unduly overemphasize issues, theories or defenses either by 

repetition or singling them out or making them unduly prominent although 

the instruction may be a legal proposition.” (Fibreboard Paper Prods. Corp. 
23

v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718; see Alamo,

supra, 219 Cal.App.4th at p. 475.)

We review de novo an instructional error challenge. (Crouch, supra,

39 Cal.App.5th at p. 1021.) When a party contends a court erred in refusing 

an instruction, we view the evidence in the light most favorable to the 

requesting party. (Ibid.)

An instructional error is not reversible unless the appellant establishes 

the error was prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 

548, 580.) “Instructional error in a civil case is prejudicial ‘where it seems 

probable’ that the error ‘prejudicially affected the verdict.’ ” (Ibid.) Actual 

prejudice must be shown and is assessed in the context of the trial record, 

including “(1) the state of the evidence, (2) the effect of other instructions, 

(3) the effect of counsel’s arguments, and (4) any indications by the jury itself 

that it was misled.” (Id. at pp. 580-581.) This prejudice determination 

“ ‘depends heavily on the particular nature of the error, and its effect on the 

appellant’s ability to place his or her full case before the jury.’ ” (Norman v. 

Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1248-1249, 

italics omitted.)

Under these standards, we consider Martinez’s contention that the 

court erred in refusing to instruct on four of her proposed special instructions.

B. Special Instruction No. 4: Adjustments to Accommodation Policies

Proposed Special Instruction No. 4 read: “The essence of the concept of 

reasonable accommodation is that, in certain instances, employers must 

make special adjustments to their policies for individuals with disabilities.” 

This instruction was unnecessary because the subject matter was 

covered by the given CACI instructions. Using CACI No. 2542, the court told

the jury, “A reasonable accommodation is a reasonable change to the 
24

workplace that allows an employee with a disability to perform the essential

duties of the job,” and identified numerous examples of reasonable 

accommodations. Under this instruction, the jury would have understood

that an employer has the obligation to make adjustments to their policies if 

needed to provide a reasonable accommodation. 

Martinez argues her proposed instruction was necessary because a 

“major defense argument, which the jury appears to have accepted based on 

two questions the jury submitted during witness examinations, is that there

was no legal requirement to accommodate a commute to work.” This 

argument contains several unsupported assumptions. 

First, there is no support in the record that SCE argued that there was 

no legal requirement to accommodate a commute to work. Because Martinez 

did not include the closing arguments in the appellate record, we have no 

basis to know what defense counsel argued. 

Second, several SCE witnesses acknowledged at trial that SCE did not

have a policy prohibiting disability accommodations relating to commutes. 

Although two SCE employees told Martinez that SCE did not accommodate 

commutes, these witnesses (and SCE’s disability manager Wood) 

acknowledged that SCE did not have a policy to this effect. Consistent with 

this testimony, the evidence showed that in September 2016 Wood instructed 

Martinez’s supervisors to accommodate Martinez’s relocation request if it 

would not interfere with her performing the essential tasks of her job. 

Third, there is no support for Martinez’s assertion that the jury 

accepted the argument that there is no legal requirement to accommodate a 

commute. Martinez relies on two juror questions pursuant to the court’s 

policy allowing jurors to submit written questions to the attorneys during the 

evidentiary phase of the trial. Martinez does not cite to the record to show 
25

which questions these were. In any event, a juror’s questions during a 

witness’s testimony before the jury is instructed, does not establish the juror

had accepted any arguments or evidence before the deliberations began.

C. Special Instruction No. 5: Commute Accommodations

Proposed Special Instruction No 5 read: “Employers must provide 

accommodations even for an employee’s disability which does not limit their 

ability to perform their job duties but impacts their ability to get to work or 

their job attendance.” (Italics added.) 

As worded, this instruction is not a correct statement of the law. The 

issue whether and when and to what extent an employer must provide 

accommodations for a disabled employee is a reasonableness standard, and 

the court would have erred in instructing the jury that SCE “must” provide 

accommodations under the identified circumstances. 

The decisions relied upon by Martinez do not support an instruction

that an employer must accommodate a disabled employee’s claimed commute 

difficulties. (See, e.g., Livingston v. Fred Meyer Stores, Inc. (9th Cir. 2010) 

388 Fed.Appx. 738 (Livingston); Sargent v. Litton Systems, Inc. (N.D.Cal. 

1994) 841 F.Supp. 956 (Sargent); Humphrey v. Memorial Hospitals Assn. (9th 

Cir. 2001) 239 F.3d 1128 (Humphrey).)

In Livingston, a visually impaired individual asked her employer for a 

modified work schedule because she could not walk or drive safely after dark. 

(Livingston, supra, 388 Fed.Appx. at p. 739.) After the employer refused, the 

employee sued under the American Disabilities Act (ADA), and the district 

court granted summary judgment in the employer’s favor based on its 

conclusions that (1) the employee was not disabled because her vision 

impairment did not substantially limit any major life activity; and (2) the 
26

duty to accommodate does not as a matter of law extend to “ ‘commuterelated limitations.’ ”3 (Id. at pp. 739, 740.) 

The Ninth Circuit reversed. (Livingston, supra, 388 Fed.Appx. at 

pp. 739-741.) On the first issue, the court stated “[i]t is beyond dispute that 

‘seeing’ is a major life activity.” (Id. at p. 740.) On the second issue, the court 

recognized an employer may have a duty under the ADA to accommodate a 

disabled employee’s limitations in getting to and from work, and found the 

employee presented sufficient evidence to preclude summary judgment

because she presented evidence supporting that her specific requested 

accommodation—“a modified schedule that permit[ted] her to work an earlier 

shift”—was reasonable given that the employer “did not experience any 

hardship when [the employee] worked a modified schedule the previous

year.” (Id. at p. 741.) 

In Sargent, an employer urged the court “to adopt a bright line rule 

[under the FEHA] that employers have no duty to get their employees to 

work and therefore [it] had no duty” to accommodate an employee who 

suffered substantial back and neck problems making it difficult for her to 

commute. (Sargent, supra, 841 F.Supp. at pp. 961, 958.) The court declined 

to adopt such a “rigid” rule, emphasizing an employer’s “ ‘reasonable 

accommodation’ ” obligation is to be interpreted “flexibly” and stating 

employers must “actively re-structure their way of doing business in order to 

accommodate the needs of their disabled employees.” (Id. at p. 961; accord 

Humphrey, supra, 239 F.3d at p. 1137 [reversing summary judgment because 

triable factual issues existed whether the plaintiff with obsessive compulsive 

disorder could perform essential duties of job at home].)

3 California courts recognize ADA decisions are relevant in interpreting 

the FEHA. (See Brundage v. Hahn (1997) 57 Cal.App.4th 228, 235.) 
27

Neither Livingston nor Sargent nor Humphrey support giving an 

instruction that SCE was required to provide accommodations for difficulties 

relating to Martinez commute. Rather, these authorities stand for the 

proposition that there is no bright line rule and an employer’s obligations to 

accommodate a disabled employee’s difficulties in getting to work depend on 

the particular circumstances of the case. Consistent with this principle, the 

court here instructed the jury that a reasonable accommodation is a 

“reasonable change to the workplace that allows an employee with a 

disability to perform the essential duties of the job,” and that reasonable

accommodations may include a wide range of alterations, including “changing

job responsibilities or work schedules.” Under these given instructions, both 

counsel were free to argue about the reasonableness of SCE’s actions 

pertaining to Martinez’s claimed commute difficulties.

Martinez argues the jury should have been “instructed that driving 

anxiety and panic attacks affecting [an employee’s] work commute had to be 

accommodated under the law.” (Italics added.) The proposed instruction was 

argumentative and is not an accurate statement of the law. 

D. Special Instruction No. 7: Preferential Reassignment

Proposed Special Instruction No. 7 read: “Disabled employees seeking

accommodation are entitled to preferential consideration for reassignment to 

vacant positions for which they qualify without having to compete for the 

position against other employees.” 

The court did not err in refusing this instruction because the court gave 

the essence of this instruction when it told the jury that “[r]eassigning an 

employee to a vacant position” may be a reasonable accommodation. 

Moreover, on the record before us, there is no showing the failure to give this 

instruction was prejudicial. The undisputed evidence showed there were two 
28

open positions at the Wildomar facility. One of the open positions was a 

promotion, and an employer is not required to offer a promotion to a disabled 

employee as an accommodation. (See Nealy, supra, 234 Cal.App.4th at 

p. 377.) As to the other open job, the evidence showed that this job required 

technical skills that Martinez did not have. As Martinez concedes, a disabled 

employee is entitled to preference for an open job only if the employee was 

qualified for that job.

Additionally, Martinez did not meet her prejudice burden because she 

did not designate the closing arguments to be included in the appellate 

record. There is no showing that Martinez’s counsel argued to the jury that 

SCE was required to give preference to Martinez as to those two jobs, and 

thus that a jury would have decided any differently on this issue. Moreover, 

to the extent her counsel did make this argument, we presume both counsel 

correctly explained to the jury the extent of an employer’s obligation to 

provide preferential consideration to an employee, and thus we cannot 

conclude the jury was misled in any way on this subject. Without a 

transcript of the closing arguments, we cannot accurately assess the potential 

impact of the requested instruction or the prejudice that might have been 

caused by its absence. 

E. Special Instruction No. 8: Employee’s Voluntary Actions

Proposed Special Instruction No. 8 read: “ ‘The cause or trigger of an 

employee’s need for accommodation does not matter, employers must 

accommodate disabilities even where the need for accommodation may have 

resulted from the employee’s voluntary action.’ ” Martinez argues this 

instruction was necessary because the jury erroneously believed she was not 

entitled to recover on her claims because her voluntary move created the 

need for an accommodation.
29

The court properly refused this instruction because it is not a proper 

statement of the law as applied in this case. Moreover, there is no basis in 

this record for finding the jury was misled or did not apply the correct law

pertaining to Martinez’s move to Murrieta.

Martinez testified during her direct examination that before her move 

she was told by her SCE supervisors that she could not relocate to a different 

office if she moved because she needed to remain with the physical files and 

her work team. Several months later, Martinez moved her residence 45 miles 

from her assigned work office and then asked to relocate based on a condition

she purportedly knew about for nine years before she moved (having panic 

attacks while driving on the freeway). These facts were certainly relevant to 

SCE’s review of Martinez’s relocation request, and to the jury’s assessment of 

whether Martinez engaged in good faith discussions to find an appropriate 

solution to her accommodations request.

In support of her proposed instruction, Martinez cites to a statement in 

a Rutter Group treatise that the “cause of an individual’s impairment is 

irrelevant” and that “the ADA may cover impairments that an individual’s 

volitional acts cause or contribute to (e.g., cancer resulting from cigarette 

smoking).” (Chin et al, Cal. Prac. Guide Employment Litigation (The Rutter 

Group 2020) § 9:285.) This statement is made in the portion of the treatise 

discussing the definition of a disability within the meaning of the ADA. In 

this context, we agree that if a person has a physical or mental disability, it 

generally does not matter whether the cause of that disability resulted from 

voluntary behavior.

But the issue posed by Martinez’s requested instruction is different. 

The question is not whether some voluntary conduct by Martinez caused her 

panic attack disorder and thus created her mental health disability. The jury 
30

found Martinez had a covered disability, and that finding has never been 

challenged. Instead, it is whether her voluntary conduct (moving far away 

from her place of employment), was the cause of her claimed need for an 

accommodation. In analogous circumstances, the courts have recognized that 

an employee’s voluntary conduct unrelated to a disability may be relevant to 

the reasonableness of the employer’s response and willingness to 

accommodate the claimed disability. (See Alamillo v. BNSF Ry. Co. (9th Cir. 

2017) 869 F.3d 916, 922 [“ ‘ “reasonable accommodation” does not include 

excusing a failure to control a controllable disability’ ”].) In this case, 

Martinez’s decision to move to a home that required a long drive on the 

freeway was relevant to (although not dispositive of) the jury’s consideration

of her disability-accommodation claim. 

Martinez additionally argues the court erred in refusing to adopt her 

proposed instruction because without the instruction the jury erroneously 

believed the sole issue before it was whether her voluntary move was 

reasonable. The record does not support this claim. The jury was fully 

instructed on the elements of the disability accommodations claim under the

CACI instructions, and these instructions did not state or suggest such a 

rule. Further, without a transcript of the closing arguments, we have no 

basis to conclude the jury was misled by SCE’s counsel on this issue. 

To support her contention that the jury was “improperly focused” solely 

on her voluntary move, she points to two questions asked by the jurors during

her case-in-chief. The first question was why Martinez did not back out of 

buying her new home before escrow closed once she realized the difficulty of 

her new commute. The second question, put to Martinez’s supervisor, asked,

“When did . . . Martinez start looking at houses, if you know?” 
31

As noted, pursuant to the court’s policy, the jurors submitted written 

questions during the course of the trial and counsel had the option whether to 

ask those questions of the witnesses. Martinez’s counsel elected to ask these 

two questions of the witnesses. But a juror’s question during trial before the 

jury is instructed, does not establish the juror accepted any arguments or 

evidence before the deliberations began. The juror questions reflected 

natural curiosity about a puzzling fact. To the extent Martinez believed 

these questions showed the jury’s attention was improperly focused on the 

move, her counsel had ample opportunity to discuss this issue with the jury 

during closing arguments, and we presume her counsel did so. 

DISPOSITION

Judgment affirmed. Martinez to bear SCE’s costs on appeal.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.