Filed 4/11/16 Salinda v. DirecTV CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

NOEL SALINDA,

Plaintiff, Respondent, and CrossAppellant,

v.

DIRECTV, LLC,

Defendant, Appellant, and CrossRespondent.

B253360

(Los Angeles County

Super. Ct. No. BC475999)

APPEAL from an order and judgment of the Superior Court of Los Angeles 

County, Ronald M. Sohigian, Judge. Affirmed in part and reversed in part.

Alexander Krakow & Glick, J. Bernard Alexander, III and Tracy L. Fehr; The 

Sampath Law Firm and Supreeta Sampath for Plaintiff, Respondent, and CrossAppellant.

Sheppard, Mullin, Richter & Hampton, Dianne Baquet Smith, Karin Dougan 

Vogel and Cassidy English; Paul Hastings and Paul W. Cane, Jr., for Defendant, 

Appellant, and Cross-Respondent.

_________________________
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Plaintiff Noel Salinda was terminated from her employment with defendant 

DirecTV, LLC. She sued under a variety of theories, including disability discrimination, 

failure to reasonably accommodate, failure to engage in the interactive process, 

retaliation, failure to prevent discrimination and retaliation, and wrongful termination in 

violation of public policy. Plaintiff sought compensatory and punitive damages. The 

trial court granted DirecTV’s motion for summary adjudication of plaintiff’s claims for 

age discrimination, wrongful termination in violation of public policy, and punitive 

damages, and the case went to trial on the remaining causes of action. The jury returned 

a special verdict for the plaintiff on the causes of action for disability discrimination, 

failure to prevent discrimination, and failure to engage in the interactive process, and for 

DirecTV on the causes of action for retaliation and reasonable accommodation. Plaintiff 

recovered damages of $1,178,341, and attorney fees of $857,628.

DirecTV appeals from the disability discrimination, failure to prevent 

discrimination, and interactive process verdicts, urging that it is entitled to judgment on 

these causes of action or, in the alternative, a new trial. Plaintiff cross-appeals from the 

reasonable accommodation verdict and from the grant of summary adjudication of her 

wrongful termination in violation of public policy and punitive damages claims.

We conclude that the special verdicts are not inconsistent, the jury was properly 

instructed, and the special verdicts are supported by substantial evidence. We thus affirm 

the jury’s verdict in its entirety. However, we conclude that there are triable issues of 

material fact as to whether the individuals responsible for disciplining and terminating 

plaintiff were managing agents of DirecTV, and thus we reverse the grant of summary 

adjudication of plaintiff’s punitive damages claim.

FACTUAL BACKGROUND

I.

Plaintiff’s Employment at DirecTV

Plaintiff began working for DirecTV as an administrative assistant in 1998. In 

2006, she became a traffic specialist, a position she held until her termination on

September 1, 2011. As a traffic specialist, plaintiff was responsible for inputting data
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into DirecTV’s on-screen channel guides and scheduling on-air programming. At various 

times, plaintiff was responsible for inputting scheduling data for standard definition (SD) 

and high definition (HD) movies.

From 2007 to 2011, plaintiff reported to Director of Traffic Operations Anthony 

Cope. Cope reported initially to Senior Director of Traffic Operations Mike McDaniel, 

and later to Vice President of Traffic Operations Jim Yokers. Yokers reported to Vice 

President (later, Senior Vice President) John Ward. 

II.

Plaintiff’s Eye Condition

 Plaintiff developed problems with her vision in 2008. She had difficulty with 

reading, contrast, and depth perception, and she could not distinguish between some 

colors. She consulted Dr. Ron Gallemore, a retina specialist, in December 2008, and was 

diagnosed with central serous retinopathy (CSR) in her left eye. CSR is caused by fluid 

leaking under the retina, resulting in a blister on the retina and blurred vision.

By February 2011, plaintiff was continuing to experience CSR and had developed 

macular edema (swelling of the central portion of the retina (the macula)) and macular 

degeneration (damage to the macula) in her left eye. Both conditions compromise vision 

in the macula, causing a portion of the visual field to appear smudged or wavy and 

making it difficult to distinguish small letters and numbers.

Plaintiff saw Dr. Gallemore throughout 2011. In March, June and July, she

reported to Dr. Gallemore that there were no changes to her vision. In September, 

following her termination from DirecTV, plaintiff reported that the vision in her left eye 

was getting worse and “[complained of a] grey smudge getting worse and distortion . . . 

getting worse.”

III.

Plaintiff’s Disclosure of Her Eye Disease and 

Requests for Accommodation in 2009 and 2010

Plaintiff testified that in about 2009, she told Cope and McDaniel she had a 

serious eye condition that could lead to blindness, and she was seeing an eye doctor for 
4

eye injections. Plaintiff said she specifically told McDaniel “how my vision was affected 

with confusing letters and numbers.” She said she unsuccessfully sought 

accommodations for her vision problems, including requesting better lighting, in 2009 

and 2010. When she received no response, she purchased a natural spectrum lamp for 

her desk in December 2010 or January 2011. Plaintiff also said that beginning in about 

2009 and “continually” thereafter, she requested a quieter working environment to help 

her concentrate. She said Cope responded by telling her to buy headphones.

Cope, McDaniel, and Yokers each testified that plaintiff did not disclose at any 

point in 2009 or 2010 that she had an eye disease or required accommodations. Cope 

testified that he did not recall plaintiff ever asking for a quieter working environment, and 

said he never suggested plaintiff buy headphones.

IV.

Plaintiff’s Increased Error Rate in December 2010

It is undisputed that plaintiff had a low data entry error rate between 2007 and 

December 2010. In December 2010, however, plaintiff began to make significantly more 

data entry errors.

Plaintiff testified that prior to December 2010, she was responsible for scheduling 

SD movies. She received the SD movie data electronically, in a format she found 

relatively easy to read. In December 2010, however, she was asked to schedule HD 

movies, which was a more difficult assignment because there were more channels and 

more associated tasks. The HD movie data was provided to plaintiff electronically in a 

grid format that contained data in very small font. Plaintiff was responsible for 

transferring the data into a scheduling program that had a small (eight inch by eight inch)

application screen that plaintiff said could not be enlarged.

Plaintiff said that in about December 2010, she asked that the HD scheduling grid 

be provided to her in a larger font. She said Cope told her to enlarge the grid on a copy 

machine, a statement he denied. Plaintiff printed hard copies of the grid, but said the grid 

could not be enlarged because “in order to enlarge it and get it all on the same sheet, it 

would be a humongous piece of paper to work from.”
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Cope testified that he discussed plaintiff’s increased error rate with her when he 

first noticed it in December 2010. He said plaintiff did not disclose anything about her 

eye, but instead insisted that her errors should be caught by the traffic department’s 

second shift. Cope said it was her responsibility to check her own work and that he 

believed plaintiff was making repeated errors because she was unwilling to do so.

Cope also testified that plaintiff told him at some point that she found the 

scheduling documents hard to read because the font was small. He suggested that she 

enlarge the documents on her computer monitor, as he typically did, to make them easier 

to read.

Cope testified that at Yokers’ request, he met with plaintiff some time between 

November 2010 and April 2011, to discuss her workload. Cope said he offered to 

reassign most of the HD scheduling, but plaintiff did not want to let it go. Cope said they 

agreed plaintiff would retain half the HD scheduling, and Cope would assign the rest to 

another traffic specialist, Katherine Harada.

V.

April and May 2011

A. Plaintiff’s April 2011 Disclosure of Her Eye Condition to Yokers and 

Request for a Reduced Workload

In early April 2011, plaintiff spoke to Yokers about her eye condition. Yokers 

said plaintiff told him she was going to need time off work to see an eye doctor, and that 

she would be receiving treatments by way of injections in her eye. He said plaintiff did 

not tell him she had an eye condition that could lead to blindness, did not say her eye 

condition was having an impact on her work, and did not ask for any assistance or 

accommodation. She asked Yokers to keep the information confidential. Yokers notified 

plaintiff’s immediate supervisor, Cope, that plaintiff was going to receive treatment from 

an eye doctor that included injections.

Plaintiff recalled the April conversation with Yokers somewhat differently. She 

said she told Yokers she was aware she was making errors, and that she was having 

difficulty with her work because she had been diagnosed with an eye disease and her 
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vision was affecting her performance. She said that at the time of this conversation, 

Yokers knew she had a lack of vision in her left eye due to a disease that could lead to 

blindness. She subsequently told him she was getting injections in her eye.

Subsequent to plaintiff’s meeting with Yokers, Cope met with plaintiff to discuss 

her increasing error rate. According to Cope’s notes, “This meeting did not go over well 

with Noel as she took this as a personal attack and attempted to shift the focus over to a 

lack of appreciation for her work and placed some of the blame with the Planning group. 

Based on the fact that we were having a lack of issues with the other half of the 

redistributed schedules [being handled by Katherine Harada] I came to the conclusion 

that her eyesight may be the underlying issue. She has made comments with regards to 

having previous Dr. appointments requiring insertion of needles into her eye to address 

sight issues.”

Also in April, plaintiff came to Yokers and said she was having difficulty 

managing her workload, which she said was extremely heavy and required her to input a 

large number of revisions. Yokers said plaintiff did not tell him at that time that the font 

of the scheduling documents was too small for her to read or that she suffered from an 

eye disease. Subsequent to this conversation, Yokers reduced the number of revisions for 

which the traffic department was responsible. Yokers also directed a change to the 

format in which scheduling information was provided to the traffic department (a 

“spreadsheet” rather than a “grid”) so that it was “more data-entry-friendly.” Finally, 

Yokers directed Cope to look into plaintiff’s workload.

Cope contacted Katherine Harada to confirm that she was still doing half the HD 

scheduling. Harada said that plaintiff had taken back the HD schedules a few weeks 

earlier, saying she had some extra time. Cope directed plaintiff to return the work to 

Harada.

B. Cope and Yokers’ April 22, 2011 Meeting with Plaintiff 

On April 22, 2011, Cope and Yokers met with plaintiff about the increasing 

number of errors she was making. Cope’s notes of the meeting state that, “Towards the 

conclusion of this discussion I simply asked what else we can do to accommodate. I also 
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made her aware that we’ve been accommodating her concerns and complaints by making 

the changes over the past several months. She continued to state she just wants to be 

appreciated. I then asked was the workload ever an issue because it sounded to me based 

on this new revelation that the workload was never an issue. Noel stated that the 

workload was never an issue, but the lack of appreciation was the issue.” Cope’s notes 

state that although plaintiff identified lack of appreciation as the issue, it “did not explain 

the amount of errors that [were] surfacing unless these mistakes were intentional. I do 

not believe the mistakes are intentional or a ploy to get attention, but rather related to a 

medical condition that she has not readily admitted.”

At trial, Cope said that at the time of the April 22 meeting, he was not certain why 

plaintiff was making so many errors. “By that time . . . I was aware she had an 

appointment with the eye injection. [Sic.] And we had meetings where she mentioned 

the reason for her performance issues was she wasn’t feeling appreciated. So . . . I didn’t 

really know what the problem was. It could have been eye related, it could possibly 

[have] been, you know, something having to do with how she felt about her job. I didn’t 

know at that point what it was . . . .”

C. Cope’s May Email to Ward About Plaintiff’s Performance

On May 18, 2011, Cope emailed Ward that there had been a “significant rise in the 

amount of data entry” errors made by plaintiff, which Cope “attribute[d] to the 

deterioration of sight in one of her eyes.” Cope testified that he assumed plaintiff’s errors 

were due in part to deteriorating eyesight because plaintiff had told him in March or April 

that she was getting needle injections in her eye. Cope added: “There has also been 

drama surrounding all this for the past several months and we have tried to accommodate

on Noel’s behalf.”

On May 19, Ward forwarded Cope’s email to human resources representative 

Mona Dhillon, stating that “I guess her eyesight is now an issue. . . . I realize that I am 

in a bit of a pickle here.” Ward testified at trial that he did not recall what he meant by 

the last statement and that he did not discuss plaintiff’s eyesight with Dhillon.
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VI.

June 2011

A. Plaintiff’s Return from Vacation and Banner Ad Training

Plaintiff took a 10-day vacation in late May 2011, returning to work on June 1. 

She testified that upon her return, she was surprised to discover that no one had covered 

her scheduling work. As a result, she had to “rush through doing the data entry” and was 

not able to check her work.

Plaintiff said that when she approached Cope to discuss the backlog, Cope told her 

that she would be relocating to the corporate building to do banner ad training.

1

 Plaintiff 

said she told Cope she was not comfortable doing the banner ads because she was not 

used to the programs and, due to her vision, she had a hard time integrating documents 

from different sources. Nonetheless, she was assigned to begin training on the banner ads 

sometime prior to June 15.

Cope had a very different account of the events surrounding plaintiff’s May 2011 

vacation and banner ad training. He testified that prior to plaintiff’s vacation, he asked 

plaintiff where she was with her scheduling and whether anyone should work on it during 

her absence. “She said, no, she didn’t want anyone touching her work. She’d take care 

of it when she [got] back. And I told her that’s kind of pushing it and the timeline’s 

going to be pretty close. She said she’ll take care of it. And I said when she [got] back to 

let me know if she needs any assistance.” Cope said he had no further discussion with 

plaintiff about the issue until early August, when plaintiff brought it up during a 

disciplinary meeting. Cope “reminded her that that’s what she asked for and so no one 

touched it and that’s the reason nothing was done. . . . [¶] . . . [¶] [Plaintiff] seemed like 

she kind of recalled it at that point.”

With regard to the banner ads, Cope testified that in June 2011, he assigned 

plaintiff to learn to input banner ads because “[s]he had expressed previously she was 

interested in doing some different things. When that opportunity came up, I figured I 

 

1 Cope testified that guide banners or banner ads are advertising spots inserted in 

online program guides.
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would let her have the first opportunity to train on it, see if it is something that she 

wanted to do.” Cope emailed Yokers in early June that he had proposed to plaintiff that 

the HD scheduling be assigned to others so she could focus on the banner ad training; 

according to Cope, plaintiff “declined to let [the HD scheduling] go,” stating that 

“handling both would not be an issue.” Cope said plaintiff never told him she thought 

banner ads would be too difficult because of her eyes.

In early June 2011, at Yokers’ direction, the format of scheduling documents was 

changed from a grid to a spreadsheet, which plaintiff found easier to read. Plaintiff said 

that both the reduction in workload and the change to the scheduling format “greatly” 

assisted her in doing her work accurately.

B. The June 15, 2011 Verbal Warning Meeting

On June 13, 2011, Dhillon informed Ward that she had asked Yokers and Cope to 

meet with plaintiff to let her know her performance had deteriorated, the company was 

considering disciplinary action, and “if there is anything they should be aware of please 

let us know.” The email to Ward concluded: “We will move forward with the PIP 

[performance improvement plan] but we would prefer to have that information and 

decide whether to accommodate or do a fitness for duty. [¶] We know it will get sticky 

if this arises in the middle of our disciplinary process.”

Cope and Yokers met with plaintiff on June 15, 2011. Yokers’ summary of the 

June 15 meeting said as follows: “Held our meeting with Noel yesterday – points 

discussed: [¶] Noel has historically been very accurate with her data entry. [¶] 

However, in the past few months we have seen a dramatic increase in data entry errors. 

[¶] Some of these errors have led to on air outages. [¶] There is a near-zero tolerance 

for on air outages. [¶] We do realize given the amount of data entry taking place in this 

department that errors may occur, but in Noel’s case the amount of errors is becoming 

alarming. [¶] Noel had confided to me that she’s being treated for an eye ailment. [¶] 

I asked if this ailment is impeding her ability to correctly enter data. Because of the 

number of errors, we’re heading towards disciplinary action, and if there is a medical 

reason behind the drop off in accuracy, we need to know about it in order to handle the 
10

situation fairly. [¶] Noel’s response was her eyes get tired by the end of the day resulting 

in blurred vision. Some days the effect occurs earlier in the day. [¶] I asked her to get a 

doctor’s note outlining her condition. She agreed. 

“Noel is currently pegged as the person to back up Melanie Doyle for guide 

banner operations and scheduling. We believe the amount of data entry associated with 

this is not as demanding as pay per view movies and should be a bit easier on the eyes

. . . . Noel is agreeable to this effort and is looking forward to working with Melanie. 

The training is supposed to start on July 9th after Melanie takes receipt of new software 

to handle guide banner operations.”

Yokers testified at trial that at the time of the June 15 meeting, he was still trying 

to figure out why plaintiff was experiencing a drop-off in accuracy. “Is this because 

she’s tired of doing the job? Is it because she doesn’t like working for Anthony [Cope]? 

Is it because – just trying to go through and figure out what is going on. [¶] She had 

confided in me about the eye injection so I asked about it, but at no time prior to that was 

she saying she was having blurred vision that was causing these errors.”

Plaintiff had a somewhat different recollection of the June 15 meeting. She said 

she could not recall anyone asking her about her eye condition but she volunteered that 

she was experiencing blurred vision. She said: “[D]ue to my vision issue my eyes would 

get very blurry by the end of the day. It was a strain on my one good eye and . . . 

sometimes my eyes would be strained before even lunchtime.” She did not recall telling 

Yokers and Cope “anything else about the issues with [her] eyes that were caused by 

looking at the source documents.”

C. Plaintiff’s Provision of a Doctor’s Note

On June 20, 2011, Cope emailed plaintiff to ask whether she had obtained a 

doctor’s note. Plaintiff said after she received Cope’s email, she contacted Dhillon to ask 

what the note should contain. According to plaintiff, “I was informed that I either 

produce a doctor’s note or I would be put on written notice and I could be terminated. I 

was not told what needed to be put in the doctor’s note.”
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On June 22, 2011, Dr. Gallemore provided plaintiff with a note that stated as 

follows: “The patient has an eye condition that affects her work environment/habits. A 

larger monitor with bigger lettering as well as ergonomic evaluation of her workspace 

may help her function better at work. In addition, 10 minute breaks for every hour of 

computer work should be taken.” Dr. Gallemore said he recommended these 

accommodations because plaintiff felt they would assist her performance. 

Plaintiff said she provided copies of Dr. Gallemore’s note to Yokers, Cope, and 

Dhillon on June 23. On June 28, 2011, Dhillon emailed Dr. Gallemore’s office asking 

for clarification of the note. His office responded on June 30 that plaintiff had no work 

restrictions, and that she should be provided with the following: “A large monitor with 

bigger [lettering], as well as an ergonomic evaluation of her workplace, in order to help 

her function better at work. In addition, 10 minute breaks for every hour of computer 

work should be taken.”

VII.

July 2011

A. Plaintiff’s Ergonomic Evaluation and Larger Monitor

Plaintiff testified that she never received an acknowledgement that her doctor’s 

note had been received, and therefore she called Dhillon to follow up. On July 18, 2011, 

Dhillon emailed plaintiff and told her to request an ergonomic evaluation. Plaintiff 

received an ergonomic evaluation on July 18 or 19, 2011.

Plaintiff received a 23-inch monitor on July 22, 2011. She requested a second 

monitor the same day; Ward stated in an email that he would “pick one up over the 

weekend.” Plaintiff testified that she received a second monitor, but she never received 

the video card necessary to make the two monitors function independently. As a result, 

she said she never was able to use the dual monitors in a way that assisted her in 

minimizing errors.2

 

2 A coworker, Katherine Harada, testified that she saw plaintiff’s two monitors 

working independently.
12

Dhillon said employee breaks were not monitored, and plaintiff took breaks as she 

needed them.

B. Plaintiff’s Application for an Administrative Assistant Position

In June or July 2011, plaintiff learned that an administrative assistant position 

would be opening, and she applied for it. She said Dhillon had suggested the position 

might be a better fit because of her vision disability. Plaintiff had three interviews for the 

position, but ultimately it was offered to someone else. At trial, Dhillon testified that she 

never told Yokers or McDaniel that plaintiff should get preferential treatment for the 

administrative assistant position because of her eye. 

C. Plaintiff’s Mid-Year Performance Review

Plaintiff received her 2011 mid-year performance review in late July 2011. In 

relevant part, it said: “Noel’s performance accuracy has been below average first half of 

the year. The amount and consistency of discrepancies surrounding her work has 

increased dramatically since the last review. We have accommodated some of her own 

suggestion[s] with regards to reducing and swapping workload[.] [T]hat did not appear 

to have much impact on the amount of discrepancies that were being escalated. We are 

continuing to address the issue by ordering an ergonomic review of her work space and 

adding a larger monitor. We will continue to work through the issues that may have 

contributed [to] this turn of events and monitor the situation. [¶] She will need to 

continue to work on addressing her issues with others in a less confrontational approach. 

An incident with IT [the information technology department] earlier this year escalated 

into an uncomfortable event in the traffic room. The altercation could have been diffused 

in a conducive and civil manner or taken to management before becoming a major 

disruption.”

VIII.

August and September 2011

A. Performance Improvement Plan (PIP)

Plaintiff was provided with a written “Performance Improvement Plan” (PIP) on 

August 3, 2011. With regard to “achieving results,” the PIP stated: “There have been 
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multiple instances where you have made data entry mistakes that have been caught 

during our checking process or . . . by other departments. On 5/16/11 an inciden[t] with 

an incorrect 2D title scheduled on a 3D channel led to on-air outage. On several 

occasions (3/24, 4/29, 5/8, 5/12, 5/13, 5/15, 5/16, 7/25) incorrect movie formats were 

scheduled some of which resulted in impairment to the broadcast of the movie. Over the 

past several months there have been recurring incidents of incorrectly mapped [pay-perview] channels that were rectified by the 2d shift team before they became on-air issues. 

[¶] We have accommodated your request to allocate the amount of scheduling and 

updates you do by splitting your workload with other members of the traffic team. Since 

that time you have continued to make a large number of mistakes at a rate that’s not 

tolerable by our department standards. You have been advised that it is your primary 

responsibility to initially check your own work or work with a member of your team to 

have your work verified for accuracy.” 

The PIP also discussed plaintiff’s repeated “altercations with members of the 

traffic team and IT [information technology] desktop support that [have] resulted in 

complaints from several team members and IT” and “occasions where your personal 

discontent with changes regarding work responsibilities or Company policy have been 

negatively voiced by you in an insubordinate manner in front of staff.”

The PIP concluded: “You will be monitored for a period of 30 days beginning 

08/03/2011 and ending 09/02/2011. Your ability to met the objectives outlined below 

will be reviewed and discussed as needed during this period. It is your responsibilit[y] to 

bring any issues to management that prevent you from accomplishing your assigned 

tasks. At the end of this period a final evaluation will be made as to your success in 

remaining consistent as it relates to your performance. If you fail to meet all of the duties 

and responsibilities required of you in your job as a Specialist, . . . you will subject 

yourself to further disciplinary action up to and including termination.”

Cope testified that when he issued the PIP, he did not know whether Dhillon “had 

engaged in an interactive process with [plaintiff].” He “assumed” she had.
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B. Plaintiff’s Performance Following the PIP

On August 29, 2011, Cope advised Dhillon that plaintiff had made an error that 

was caught by the second shift on August 24. He said: “This is the same type of issue

that occurred a few weeks ago on 7/30.” Also, on August 25, Cope “received notice that 

drama is brewing in the Traffic room. I sat down and talked individually with the parties 

involved: Tiffani Smith, Brian Umana and Noel Salinda. My summary of the events is 

Noel overheard a discussion between [co-workers] Brian and Tiffani. As a result of what 

she heard Noel decided to engage Brian with regards to the discussion he just concluded 

with Tiffani. The manner in which Noel pursued Brian with the discussion she overheard 

was labeled as [drama-filled] by both Brian and Tiffani. . . . [¶] This reflects directly on 

the performance improvements I have [cited in] her PIP.”

On August 30, 2011, Dhillon forwarded Cope’s August 29 email and added: “We 

can’t ding her for the conversation but for the error I am going to try – will let you 

know.”

C. The August 30 On-Air Outage 

On August 31, 2011, Cope learned that there had been a on-air outage the day 

before, and he asked Depali Khanna to look into it. Khanna responded that on August 

30, at about 11:45 a.m., plaintiff had taken a call from the broadcast operations center 

advising that a pay-per-view movie had been incorrectly scheduled to end at 2:00 p.m., 

instead of at 3:19 p.m. Plaintiff said she would correct the problem, but at 2:00 p.m., the 

channel went black. A coworker restored the movie transmission 14 minutes later. 

Khanna reported that she spoke to plaintiff about the incident, and plaintiff admitted that 

she had forgotten to take a necessary step to extend the movie transmission. Plaintiff did 

not give Khanna any other explanation for the outage and did not mention her vision. 

Khanna told Cope that plaintiff seemed unconcerned about the outage: “[Khanna] 

mentioned that . . . [plaintiff’s] attitude was kind of like, you know, what’s the big 

deal. . . . [¶] . . . [¶] It’s just a 14-minute outage. It was like a C or D title movie. It’s 

not like anybody was watching it. If somebody was watching it, they could easily pick 

up the movie on another channel.”
15

Cope thought “it was a pretty crappy attitude to have towards an outage.” He

characterized the error as “black and white a careless mistake” and said that he believed 

many of plaintiff’s prior mistakes were “part of that same carelessness.” He said: “It 

looked to me like it was just straight carelessness, somebody rushed through what they 

were doing. They could take three to five minutes to wait and verify what they did. 

[This] [d]irectly ties back to all the problems that we’ve been dealing with trying to get 

[plaintiff] to double-check what she’s been doing, been brought up on multiple occasions 

back in December, again in April, I believe again in June, again on a PIP, and for 

whatever reason she just did not feel she was responsible for double-checking her work.”

Plaintiff testified at trial that she had taken the steps necessary to extend the movie 

broadcast. She then had to leave the office to attend an interview for the administrative 

assistant position, and so she asked a co-worker to verify that the change had gone 

through. When she returned from the interview, she learned the movie had shut down 

early.

D. Plaintiff’s Termination

Cope said he did not immediately make the decision to terminate plaintiff, but 

instead “went home, kind of slept on it and went kind of back and forth to figure out is 

there any other possibility other than carelessness for why this happened, and I went 

through that several times and I couldn’t think of anything other than carelessness. . . . 

So when I came into work, I believe that was September 1st, I decided, you know, that 

was it and I called Mona [Dhillon] and said, you know, I want to move to termination.”

Cope told plaintiff on September 1 that she was being terminated. During the 

termination meeting, plaintiff never mentioned her eye or any needed accommodations.

Cope said the decision to terminate was his alone. He decided to terminate 

plaintiff because of scheduling errors, carelessness, and ongoing conflict with coworkers. 

He said he did not decide to terminate plaintiff because of her eye or for her request for

accommodations. Further, he said the August 30 on-air outage was unrelated to 

plaintiff’s eye condition: “[T]hat outage was clearly an example of someone that rushed 

through what they were doing, didn’t double-check their work . . . . It was just careless.”
16

Plaintiff testified that her final salary at DirecTV was approximately $60,000 per 

year, plus medical, dental, vision, and life insurance. She said she had planned to 

continue working for DirecTV for at least seven more years. As of the date of her 

termination, plaintiff believed she could have performed her job with accommodations.

IX.

Post-Termination Issues

Following her termination, in February 2012, plaintiff was examined by 

optometrist Dr. Brett Nagatani. He suggested some low-vision aids he believed would 

help her. They included an illuminated hand magnifier, a screen magnification software 

program called “zoom text,” and a “zoom text” keyboard.

As of the time of trial, plaintiff said she had applied for more than 600 positions, 

but had not been able to find new work. She had no income other than unemployment 

benefits, which were soon to run out, and no health insurance. Plaintiff said she had been 

very lonely and depressed since her termination.

PROCEDURAL BACKGROUND

I.

Operative Complaint

Plaintiff filed the present action on December 30, 2011, and filed the operative 

first amended complaint on April 9, 2012. The first amended complaint asserted nine 

causes of action: (1) disability discrimination; (2) failure to provide reasonable 

accommodation; (3) failure to engage in the interactive process; (4) retaliation; (5) failure 

to prevent discrimination; (6) employment discrimination based on age; (7) wrongful 

termination in violation of public policy; (8) Labor Code violations; and (9) violations of 

Business and Professions Code section 17200.
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II.

DirecTV’s Summary Adjudication Motion

On September 28, 2012, DirecTV filed a motion for summary adjudication of the 

first, fourth, fifth, sixth, and seventh causes of action, and of plaintiff’s prayer for 

punitive damages.

On December 14, 2012, the trial court granted summary adjudication of the sixth 

and seventh causes of action (age discrimination and wrongful termination in violation of 

public policy), and denied summary adjudication of the first, fourth, and fifth causes of 

action (disability discrimination, failure to provide reasonable accommodations, and 

failure to prevent discrimination). The trial court also granted summary adjudication of 

plaintiff’s request for punitive damages.

III.

Trial, Judgment, and Appeal

The remaining causes of action were tried to a jury August 12 to 23, 2013. The 

jury returned a special verdict for the plaintiff on the causes of action for disability 

discrimination, failure to prevent discrimination, and failure to engage in the interactive 

process, and for DirecTV on the causes of action for retaliation and reasonable 

accommodation. The jury awarded plaintiff damages as follows: 

Disability discrimination: $214,170.50 

Retaliation: $0

Failure to prevent discrimination: $750,000

Failure to provide reasonable accommodation: $0

Failure to engage in the interactive process: $214,170.50

TOTAL: $1,178,341

Judgment on special verdict was entered on October 1, 2013. DirecTV moved for 

a new trial and judgment notwithstanding the verdict; the court denied both motions on 

November 19, 2013. On January 13, 2014, the trial court awarded plaintiff attorney fees 

of $857,628.75, and costs of $14,490.50.
18

DirecTV timely appealed from the judgment and post-judgment orders. Plaintiff 

timely cross-appealed.

DIRECTV’S APPEAL

I.

Overview

The Fair Employment and Housing Act (FEHA) “prohibits several employment 

practices relating to physical disabilities. First, it prohibits employers from refusing to 

hire, discharging, or otherwise discriminating against employees because of their physical 

disabilities. (Gov. Code, § 12940, subd. (a).) Second, it prohibits employers from failing 

to make reasonable accommodation for the known physical disabilities of employees. 

(Id., subd. (m).) Third, it prohibits them from failing to engage in a timely and good faith 

interactive process with employees to determine effective reasonable accommodations. 

(Id., subd. (n).) Fourth, it prohibits them from retaliating against employees for opposing 

practices forbidden by FEHA. (Gov. Code, § 12940, subd. (h).) Separate causes of 

action exist for each of these unlawful practices. (McCaskey v. California State 

Automobile Assn. (2010) 189 Cal.App.4th 947, 987; Gelfo v. Lockheed Martin Corp. 

(2006) 140 Cal.App.4th 34, 54.)” (Nealy v. City of Santa Monica (2015) 

234 Cal.App.4th 359, 371 (Nealy).)3 A separate cause of action also exists for an 

employer’s failure to take all reasonable steps to prevent discrimination. (§ 12940, subd. 

(k); Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1313.)

DirecTV contends that the reasonable accommodation and interactive process 

claims are irreconcilably inconsistent, and thus a new trial is required. It also attacks the 

special verdicts against it, contending that it is entitled to judgment on the causes of 

action for disability discrimination, failure to prevent discrimination, and failure to 

engage in the interactive process. Finally, DirecTV contends that the jury was 

misinstructed on the elements of disability discrimination. 

 

3 All subsequent undesignated statutory references are to the Government Code.
19

II.

The Jury’s Reasonable Accommodation and Interactive Process 

Verdicts Are Not Irreconcilably Inconsistent

DirecTV urges that it is entitled to a new trial because the reasonable 

accommodation and interactive process verdicts are irreconcilably inconsistent. For the 

reasons that follow, the contention is without merit.

“A special verdict is inconsistent if there is no possibility of reconciling its 

findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely 

affected should request clarification, and the court should send the jury out again to 

resolve the inconsistency. [Citations.] [Fn. omitted.] If no party requests clarification or 

an inconsistency remains after the jury returns, the trial court must interpret the verdict in 

light of the jury instructions and the evidence and attempt to resolve any inconsistency. 

[Citations.] 

“On appeal, we review a special verdict de novo to determine whether its findings 

are inconsistent. [Citation.] With a special verdict, unlike a general verdict or a general 

verdict with special findings, a reviewing court will not infer findings to support the 

verdict. [Citations.] ‘ “ ‘Where the findings are contradictory on material issues, and the 

correct determination of such issues is necessary to sustain the judgment, the 

inconsistency is reversible error.’ ” [Citations.]’ [Citation.] ‘The appellate court is not 

permitted to choose between inconsistent answers. [Citations.]’ [Citation.] The proper 

remedy for an inconsistent special verdict is a new trial. [Citation.]” (Singh v. Southland 

Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357-358.)

DirecTV asserts that the reasonable accommodation and interactive process 

special verdicts are inconsistent because the interactive process “ ‘is not an end in itself—

it is a means to the end of forging reasonable accommodations.’ ” Thus, DirecTV 

suggests, “[w]here as here, an employee is reasonably accommodated, the interactive 

process claim necessarily fails.”

The Court of Appeal rejected a similar contention in Wysinger v. Automobile Club 

of Southern California (2007) 157 Cal.App.4th 413. There, the plaintiff suffered from a 
20

variety of physical ailments. After he filed an age discrimination complaint with the 

Equal Employment Opportunity Commission, plaintiff’s work environment changed: He 

was treated coldly and ignored at management meetings, and his requests for 

accommodation were ignored. (Id. at p. 418.) Subsequently, plaintiff’s employer denied 

his request to transfer to an office closer to his home, and plaintiff became depressed and 

was unable to work. (Id. at p. 419.) Plaintiff sued his employer for various violations of 

the FEHA, and the jury returned a split verdict, finding, among other things, that the 

employer did not fail to provide a required accommodation to plaintiff for his physical 

disability, but did fail to engage in an interactive process. (Ibid.)

The employer appealed, contending that the reasonable accommodation and 

interactive process verdicts were inconsistent. The Court of Appeal disagreed. It noted 

that where special verdicts appear inconsistent, “if any conclusions could be drawn which 

would explain the apparent conflict, the jury will be deemed to have drawn them.” 

(Wysinger v. Automobile Club of Southern California, supra, 157 Cal.App.4th 413 at 

p. 424.) It then concluded that the special verdicts could be reconciled, explaining as 

follows: 

“Under FEHA, an employer must engage in a good faith interactive process with 

the disabled employee to explore the alternatives to accommodate the disability. 

[Citation.] ‘An employee may file a civil action based on the employer’s failure to 

engage in the interactive process.’ [Citation.] Failure to engage in this process is a 

separate FEHA violation independent from an employer’s failure to provide a reasonable 

disability accommodation, which is also a FEHA violation. [Citations.] An employer 

may claim there was no available reasonable accommodation. But if it did not engage in 

a good faith interactive process, ‘it cannot be known whether an alternative job would 

have been found.’ [Citation.] The interactive process determines which accommodation 

is required. [Citations.] Indeed, the interactive process could reveal solutions that neither 

party envisioned. 

“Here the jury could find there was no failure to provide a required 

accommodation because the parties never reached the stage of deciding which 
21

accommodation was required. [Defendant] prevented this from happening by its refusal 

to engage in the interactive process.” (Wysinger v. Automobile Club of Southern 

California, supra, 157 Cal.App.4th 413 at pp. 424-425.)

The Wysinger analysis applies equally in the present case. Based on the evidence 

before it, the jury could have concluded that DirecTV provided plaintiff some 

accommodations (i.e., an ergonomic evaluation and larger computer monitor), but then 

failed to continue to engage in the interactive process to determine whether these

accommodations were effective. It thus could have concluded that DirecTV acted 

reasonably in providing the accommodations suggested by plaintiff’s doctor, but 

unreasonably in not continuing the interactive process with plaintiff thereafter. 

Alternatively, the jury could have concluded that if DirecTV had continued to 

engage with plaintiff after providing the initial accommodations, it would have learned 

about additional accommodations that might have assisted plaintiff in performing her job, 

such as a second functional computer monitor, screen magnification software, and a 

“zoom text” keyboard. As in Wysinger, the jury therefore could have concluded that 

DirecTV failed to engage in a good faith interactive process with plaintiff after July 2011, 

but that there was no failure to provide additional accommodations because the parties 

never reached the stage of determining that those accommodations were reasonable and 

necessary. 

Wilson v. County of Orange (2009) 169 Cal.App.4th 1185 (Wilson), on which 

DirecTV relies, does not compel a different conclusion. In Wilson, the plaintiff was 

accommodated for a period of time, and then went on unpaid leave while her employer 

sought alternative positions for her. Ultimately, plaintiff returned to work in her original 

position with the accommodations she requested. Two weeks later, she sued her 

employer for failure to accommodate and failure to engage in the interactive process. 

(Id. at pp. 1189-1192.) 

A jury returned a verdict for the defendant, and plaintiff appealed, contending that 

substantial evidence did not support the verdict for the defendant on the failure to 

accommodate claim. The Court of Appeal disagreed and affirmed. It explained: “[T]he 
22

record demonstrates the County engaged in a process aimed at trying to accommodate 

Wilson. Indeed, the success of its process is borne out by the fact that in the end, Wilson 

got exactly what she wanted—albeit after a series of temporary accommodations. (See 

Hanson [v. Lucky Stores, Inc. (1999)] 74 Cal.App.4th [215], 229 [employer cannot be 

held liable for failing to engage in interactive process when the employee was in fact 

offered a reasonable accommodation]; see also Watkins v. Ameripride Services (9th Cir. 

2004) 375 F.3d 821, 829, fn. 5 [fact that employer reasonably accommodated plaintiff’s 

disability precluded claim it failed to engage in interactive process].)” (Wilson, supra, 

169 Cal.App.4th at p. 1195, italics added.)

DirecTV contends that the italicized language and the court’s citation to Hanson

stand for the proposition that a reasonable accommodation finding “forecloses 

interactive-process liability” as a matter of law. According to DirecTV, “If the end—

reasonable accommodation—is achieved, alleged process-based shortcomings fall by the 

wayside.” We do not agree that Wilson should be read so broadly. The Wilson court 

made the italicized statement with respect to an interactive process that culminated in the 

plaintiff receiving all the accommodations she requested and, thereafter, successfully 

performing her job. Indeed, the Wilson court noted that when the case came to trial 

nearly two years later, plaintiff was still working for the defendant under the agreed 

accommodations. (Wilson, supra, 169 Cal.App.4th at p. 1192.) In the present case, in 

contrast, the accommodations DirecTV provided were not successful, and a further 

interactive process to determine additional accommodations was foreclosed by plaintiff’s 

termination. On these facts, we cannot conclude that the jury’s reasonable 

accommodation finding precluded liability for failure to engage in the interactive process 

as a matter of law. 

III.

The Jury’s Special Verdicts Were Supported by

Substantial Evidence

DirecTV contends that even if the special verdicts were not inconsistent, the 

judgment should be reversed because the interactive process, disability discrimination, 
23

and failure to prevent discrimination verdicts are not supported by substantial evidence. 

For the reasons that follow, we disagree.

“Under the substantial evidence standard of review, ‘the power of an appellate 

court begins and ends with the determination as to whether there is any substantial 

evidence, contradicted or uncontradicted, which will support the finding of fact.’ 

[Citation.] We are required to accept all evidence that supports the successful party, 

disregard the contrary evidence, and draw all reasonable inferences to uphold the 

judgment. [Citation.] ‘While substantial evidence may consist of inferences, such 

inferences must be “a product of logic and reason” and “must rest on the evidence” 

[citation]; inferences that are the result of mere speculation or conjecture cannot support a 

finding [citations].’ [Citation.] Thus, it is not our role to reweigh the evidence, 

redetermine the credibility of the witnesses, or resolve conflicts in the testimony, and we 

will not disturb the judgment if there is evidence to support it. [Citations.] ‘The ultimate 

test is whether it is reasonable for a trier of fact to make the ruling in question in light of 

the whole record.’ [Citation.]” (Harley-Davidson, Inc v. Franchise Tax Board (2015) 

237 Cal.App.4th 193, 213-214.)

A. Failure to Engage in the Interactive Process 

“The FEHA makes it ‘an unlawful employment practice . . . [¶] . . . [¶] . . . [f]or an 

employer or other entity covered by this part to fail to engage in a timely, good faith, 

interactive process with the employee or applicant to determine effective reasonable 

accommodations, if any, in response to a request for reasonable accommodation by an 

employee or applicant with a known physical or mental disability or known medical 

condition.’ (§ 12940, subd. (n).) Although the interactive process is an informal process 

designed to identify a reasonable accommodation that will enable the employee to 

perform his or her job effectively (Scotch [v. Art Institute of California (2009)]

173 Cal.App.4th [986,] 1013), an employer’s failure to properly engage in the process is 

separate from the failure to reasonably accommodate an employee’s disability and gives 

rise to an independent cause of action (Gelfo [v. Lockheed Martin Corp. (2006)]
24

140 Cal.App.4th [34,] 61).” (Swanson v. Morongo Unified School Dist. (2014) 

232 Cal.App.4th 954, 971.)

“ ‘ “[T]he interactive process is at the heart of the [FEHA’s] process and essential 

to accomplishing its goals. It is the primary vehicle for identifying and achieving 

effective adjustments which allow disabled employees to continue working without 

placing an ‘undue burden’ on employers.” ’ (Jensen [v. Wells Fargo Bank (2000)]

85 Cal.App.4th [245,] 261-262.) ‘In a practical sense,’ as another court observed in the 

ADA context, ‘the interactive process is more of a labor tool than a legal tool, and is a 

prophylactic means to guard against capable employees losing their jobs even if they are 

not actually disabled. It is clearly a mechanism to allow for early intervention by an 

employer, outside of the legal forum, for exploring reasonable accommodations for 

employees who are perceived to be disabled. . . .’ (Jacques [v. DiMarzio, Inc. (2002)]

200 F.Supp.2d [151,] 170.)” (Gelfo v. Lockheed Martin, supra, 140 Cal.App.4th at 

pp. 61-62.)

“The employee must initiate the process unless his or her disability and the 

resulting limitations are obvious. Once initiated, the employer has a continuous 

obligation to engage in the interactive process in good faith. (Scotch, supra, 

173 Cal.App.4th at p. 1013.) ‘Both employer and employee have the obligation “to keep 

communications open” and neither has “a right to obstruct the process.” [Citation.] 

“Each party must participate in good faith, undertake reasonable efforts to communicate 

its concerns, and make available to the other information which is available, or more 

accessible, to one party. Liability hinges on the objective circumstances surrounding the 

parties’ breakdown in communication, and responsibility for the breakdown lies with the 

party who fails to participate in good faith.” [Citation.]’ [Citation.]

“ ‘[T]he fact that an employer took some steps to work with an employee to 

identify reasonable accommodations does not absolve the employer of liability. . . . If the 

employer is responsible for a later breakdown in the process, it may be held liable.’

(Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 985.)” 

(Swanson v. Morongo Unified School Dist., supra, 232 Cal.App.4th at pp. 971-972.)
25

Viewing the evidence in the light most favorable to plaintiff, we cannot agree that 

the jury’s finding that DirecTV “fail[ed] to participate in a timely good-faith interactive 

process with Noel Salinda to determine whether reasonable accommodation could be 

made” was unsupported by substantial evidence. Plaintiff testified that in about 2009, 

she told her supervisors, Cope and McDaniel, that she had a serious eye disease that was 

affecting her vision and causing her to confuse letters and numbers. She also testified 

that in 2009 or 2010, she requested better lighting and a quieter workspace as 

accommodations for her vision problems. Plaintiff said she was not provided either

accommodation, and that no one at DirecTV asked how the company could accommodate 

her until at least April 2011, more than a year after she disclosed her disability. Given 

this evidence, the jury could reasonably have found that DirecTV became aware of 

plaintiff’s need for accommodation in 2009 or 2010, but did not timely engage in an

interactive process with her to identify and implement an appropriate accommodation

until at least 2011. 

The jury could also have reasonably concluded that DirecTV did not engage in a 

good faith interactive process with plaintiff after receiving her doctor’s note in June 2011. 

It was undisputed that plaintiff continued to make errors even after she was provided with 

the accommodations requested by Dr. Gallemore. Although the company’s internal 

emails demonstrated that Cope, Yokers, and Dhillon all knew about these errors, there is

no evidence that anyone at DirecTV approached plaintiff to ask how the company could 

further accommodate her. From this evidence, too, the jury reasonably could have 

concluded that DirecTV failed to engage in a good faith interactive process.

DirecTV notes that Yokers and Cope met with plaintiff throughout 2011, 

repeatedly pressing her for information about her eye disease and the accommodations 

she required. When plaintiff finally provided the company with a doctor’s note in June 

2011, DirecTV promptly provided her with each of the accommodations her doctor 

requested. In short, DirecTV urges, the evidence establishes that “Yokers and the others 

in management responded in textbook fashion.” While that is arguably a reasonable view 

of the evidence, it is not the only reasonable view. DirecTV’s argument is essentially an 
26

invitation to reweigh the evidence, something this court cannot do. If the evidence 

reasonably justifies the findings made by the trier of fact, reversal of the judgment is not 

warranted simply because the circumstances might also reasonably be reconciled with a 

contrary finding. (E.g., Lobo v. Tamco (2014) 230 Cal.App.4th 438, 442.)

B. Disability Discrimination 

“The FEHA makes it an unlawful employment practice ‘[f]or an employer, 

because of the . . . physical disability [or] mental disability, . . . of any person, . . . to bar 

or to discharge the person from employment, . . . or to discriminate against the person in 

compensation or in terms, conditions, or privileges of employment.’ (§ 12940, subd. (a) 

(hereafter section 12940(a)).) Although section 12940 proscribes discrimination on the 

basis of an employee’s disability, it specifically limits the reach of that proscription, 

excluding from coverage those persons who are not qualified, even with reasonable 

accommodation, to perform essential job duties: “This part does not prohibit an 

employer from refusing to hire or discharging an employee with a physical or mental 

disability . . . where the employee, because of his or her physical or mental disability, is 

unable to perform his or her essential duties even with reasonable accommodations, or 

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.” ’ (Green 

v. State of California (2007) 42 Cal.4th 254, 262 (Green), quoting § 12940(a)(1).) Thus, 

‘[i]n order to prevail on a discriminatory discharge claim under section 12940(a), an 

employee bears the burden of showing (1) that he or she was discharged because of a 

disability, and (2) that he or she could perform the essential functions of the job with or 

without accommodation (in the parlance of the [ADA], that he or she is a qualified 

individual with a disability). [Citation.]’ (Nadaf-Rahrov, supra, 166 Cal.App.4th at 

p. 962; see also Green, at p. 262.)” (Lui v. City and County of San Francisco (2012) 

211 Cal.App.4th 962, 970-971.)

DirecTV contends that it was entitled to judgment on plaintiff’s disability 

discrimination claim because there is no substantial evidence that the event that triggered 

plaintiff’s termination—the August 30 on-air outage—was vision related. DirecTV 
27

urges: “[Plaintiff’s] error was unrelated to her disability. The company’s action in 

discharging Salinda therefore could not possibly be discrimination.”

We do not agree. Even assuming that the August 30 on-air outage was not vision 

related, there was abundant (albeit disputed) evidence that between December 2010 and 

August 2011, plaintiff made a significant number of errors attributable to her 

deteriorating vision. By DirecTV’s own admission, these errors were a reason—even if 

not the only reason—that plaintiff received a verbal warning in July 2011 and was placed 

on a PIP in August 2011. The jury thus could reasonably have concluded that plaintiff 

was terminated not solely because of the August 30 outage, but because that outage 

followed an eight-month period in which plaintiff made an “alarming” number of errors 

for which she had been subject to discipline.

DirecTV also contends that even if plaintiff had been terminated for vision-related 

errors, such termination would not have been discriminatory because plaintiff had been 

reasonably accommodated. DirecTV urges: “[B]edrock disability law has required 

persons with disabilities to meet the employer’s standards. Reasonable accommodations 

of course must be made (and the jury here expressly found that DirecTV made them). 

But once that occurs, nothing in the law requires an employer to overlook performance 

deficiencies, whether caused by a disability or otherwise.”

We reject DirecTV’s suggestion that because the jury returned a special verdict for 

defendant on plaintiff’s reasonable accommodation claim, it had to find that plaintiff was 

not subject to disability discrimination. As we have said, the jury reasonably could have 

concluded that (1) plaintiff was reasonably accommodated at some points in time, but 

(2) plaintiff required additional accommodations—which she was not provided, and 

which led to the errors for which she was terminated—in late August 2011. Such 

findings amply support a finding of disability discrimination. 

C. Failure to Prevent Discrimination 

Government Code section 12940, subdivision (k), prohibits an employer from 

failing “to take all reasonable steps necessary to prevent discrimination.” (Italics added.) 

To prevail on a claim for failure to prevent discrimination, a plaintiff must establish three 
28

elements: (1) he or she was subjected to discrimination, harassment, or retaliation; 

(2) the defendant failed to take all reasonable steps to prevent discrimination, harassment, 

or retaliation; and (3) the defendant’s failure caused the plaintiff to suffer injury, damage, 

loss, or harm. (Lelaind v. City and County of San Francisco (2008) 576 F.Supp.2d 1079, 

1103; see also CACI No. 2527.) 

DirecTV urges that it was entitled to judgment on plaintiff’s failure to prevent 

discrimination claim because no substantial evidence supported it. We do not agree. The 

record was replete with evidence that DirecTV failed to take reasonable steps to prevent 

discrimination, including the following:

Yokers, a DirecTV vice president and plaintiff’s second-level supervisor, testified 

that he had never seen DirecTV’s antidiscrimination policy, was not familiar with the 

terms “reasonable accommodation” or “interactive process,” and had never been told that 

a disabled employee may be entitled to preferential consideration for a position as an 

accommodation for a disability.

John Ward, a DirecTV senior vice president and plaintiff’s third-level supervisor, 

testified that he had never received any training from DirecTV as to how people with

disabilities were to be treated, was not familiar with the terms “reasonable 

accommodation” or “interactive process,” did not know what DirecTV’s responsibilities 

to disabled employees were, and did not know who at DirecTV was responsible for 

making sure that DirecTV’s antidiscrimination policies were followed.

Mona Dhillon, DirecTV’s human resources representative, testified that she had 

never received any formal training concerning employees with disabilities, had only 

“some understanding” of the interactive process, did not recall whether she ever engaged 

in the interactive process with plaintiff, and did not know whether anyone else at 

DirecTV had ever done so.

DirecTV’s opening brief does not discuss any of this evidence, but instead 

describes the evidence it believes demonstrates its reasonable steps to prevent 

discrimination company-wide. DirecTV notes that it adopted a nondiscrimination policy, 

maintained an ethics hotline, required its supervisory employees to undergo regular 
29

antidiscrimination training, posted information about antidiscrimination laws in employee 

breakrooms, and had available sources to respond to discrimination. Further, DirecTV 

urges that it took reasonable steps to prevent discrimination against plaintiff, noting that 

Yokers and Cope changed the format of scheduling documents to assist plaintiff, 

encouraged plaintiff to advise the company if her eye issues were affecting her 

performance, sought plaintiff’s doctor’s guidance on necessary accommodations, and 

provided all the accommodations her doctor requested. This evidence, DirecTV urges, is 

“substantial evidence . . . [that] DirecTV took all reasonable steps on an institutional level 

to prevent discrimination in general, and also that it took all reasonable steps to prevent 

discrimination against Salinda in particular.”

DirecTV’s argument essentially asks us to reweigh the evidence and substitute our 

judgment for the jury’s. We cannot do so. Instead, we determine whether, after 

resolving all conflicts and drawing all inferences most favorably to the prevailing party, 

there is substantial evidence to support the jury’s verdict. (E.g., Kelly v. CB&I 

Constructors, Inc. (2009) 179 Cal.App.4th 442, 454; Scott v. Pacific Gas & Electric Co. 

(1995) 11 Cal.4th 454, 465, disapproved on another ground in Guz v. Bechtel National, 

Inc. (2000) 24 Cal.4th 317, 352, fn. 17.) The fact that the evidence might have supported 

a contrary finding does not warrant reversal. 

IV.

There Was No Instructional Error Requiring a New Trial

DirecTV contends that the trial court should have granted a new trial because the 

jury was misinstructed on the issue of actionable disability discrimination. For the 

reasons that follow, DirecTV’s contention is without merit.

Following the close of evidence, the jury was instructed consistent with CACI 

2540 (Disability Discrimination—Disparate Treatment) and 2542 (Disability 

Discrimination—“Reasonable Accommodation” Explained) as follows:

“Noel Salinda claims that DirecTV wrongfully discriminated against her based on 

her actual or perceived disability (impaired vision). To establish this claim, Noel Salinda 

must prove all of the following:
30

“1. That DirecTV knew of or treated Noel Salinda as if she had a physical 

condition that limited her ability to see and/or work; 

“2. That Noel Salinda was able to perform the essential job duties with 

reasonable accommodation for her actual or perceived disability (impaired vision); 

“3. That DirecTV terminated Noel Salinda or subjected her to other adverse 

employment action;

“4. That Noel Salinda’s actual or perceived disability (impaired vision) was a 

substantial motivating reason for DirecTV’s decision to either terminate or take other 

adverse employment action against Noel Salinda;

“5. That Noel Salinda was harmed; and

“6. That DirecTV’s conduct was a substantial factor in causing Noel Salinda 

harm.”

“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.”

DirecTV concedes that these instructions correctly stated the law. It urges, 

however, the court should also have instructed that “A person with a disability must 

perform the job’s essential functions. It is not disability discrimination if, following 

reasonable accommodation, an employer takes adverse action because a person with a 

disability cannot, or for any other reason fails to, fulfill a job’s essential job functions.” 

DirecTV concedes that it did not request such an instruction, but urges that the court had 

a duty to give the instruction sua sponte because “the court had an independent obligation 

to correctly instruct the jury on the law.”

DirecTV’s concession that it did not ask the trial court to give the “omitted” 

instruction is dispositive of its claim of instructional error. As our Supreme Court 

explained in Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131, by 

requesting the instructions the court gave and not requesting any additional instructions, a 

party forfeits the right to argue on appeal that the court misinstructed the jury: “ ‘ “ ‘In a 

civil case, each of the parties must propose complete and comprehensive instructions in 

accordance with his theory of the litigation; if the parties do not do so, the court has no 
31

duty to instruct on its own motion.’ [Citations.]” [Citation.] Neither a trial court nor a 

reviewing court in a civil action is obligated to seek out theories plaintiff might have 

advanced, or to articulate for him that which he has left unspoken.’ [Citation.] . . . 

Where, as here, “the court gives an instruction correct in law, but the party complains that 

it is too general, lacks clarity, or is incomplete, he must request the additional or 

qualifying instruction in order to have the error reviewed.” [Citations.]’ [Citation.] [A 

party’s] failure to request any different instructions means he may not argue on appeal the 

trial court should have instructed differently. [Citations.]” (Id. at pp. 1130-1131; see also 

Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1011 [“When a trial 

court ‘gives a jury instruction which is correct as far as it goes but which is too general or 

is incomplete for the state of the evidence, a failure to request an additional or a 

qualifying instruction will waive a party’s right to later complain on appeal about the 

instruction which was given. [Citation.]’ ”].) 

DirecTV correctly notes that there is a limited exception to the rule that a court has 

no duty to instruct in the absence of a specific request by a party where there is “a 

complete failure to instruct on material issues and controlling legal principles.” (Agarwal 

v. Johnson (1979) 25 Cal.3d 932, 951, disapproved on another ground in White v. 

Ultramar (1999) 21 Cal.4th 563, 574, fn. 4.) No such failure appears here: As we have 

said, the court correctly instructed the jury concerning the elements of a disability 

discrimination claim and the legal meaning of “reasonable accommodations.” 

Accordingly, DirecTV’s failure to request additional instruction on disability

discrimination forfeited the claimed instructional error. 

V.

Attorney Fees

DirecTV urges that if we reverse the judgment in whole or in part, we must 

remand for the trial court to redetermine attorney fees. Because we instead affirm the 

portions of the judgment challenged by DirecTV, we do not reach the issue of attorney 

fees.
32

PLAINTIFF’S CROSS-APPEAL

Plaintiff’s cross-appeal raises three issues: (1) Substantial evidence did not 

support the jury’s verdict for DirecTV on the reasonable accommodations claim;

(2) The trial court erred in granting summary adjudication of plaintiff’s prayer for 

punitive damages; and (3) The trial court erred in granting summary adjudication of 

plaintiff’s claim for wrongful termination in violation of public policy. 

I.

The Reasonable Accommodation Verdict 

Was Supported by Substantial Evidence

Under section 12940, it is an unlawful employment practice “to fail to make 

reasonable accommodation for the known physical or mental disability of an applicant or 

employee” unless the employer demonstrates doing so would impose an undue hardship. 

(§ 12940, subd. (m).) The essential elements of a failure to accommodate claim are: 

(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified 

individual (i.e., he or she can perform the essential functions of the position); and (3) the 

employer failed to reasonably accommodate the plaintiff’s disability. (Wilson v. County 

of Orange (2009) 169 Cal.App.4th 1185, 1192.) “A reasonable accommodation is a 

modification or adjustment to the work environment that enables the employee to 

perform the essential functions of the job he or she holds or desires. [Citation.]” (Nealy, 

supra, 234 Cal.App.4th at p. 373.) 

Plaintiff contends that the jury’s reasonable accommodation finding—that 

DirecTV did not “fail to provide reasonable accommodation for [plaintiff’s] disability”—

is not supported by substantial evidence. We do not agree. There was evidence before 

the jury that even prior to receiving her doctor’s note, Cope and Yokers reduced 

plaintiff’s workload, changed the format of the scheduling documents to make them 

easier to read, and asked what else they could do to accommodate her. After plaintiff 

provided a doctor’s note, DirecTV provided her with each of the accommodations her 

doctor requested. This evidence was sufficient to support the jury’s finding that DirecTV 

did not fail to reasonably accommodate her.
33

Plaintiff urges that notwithstanding the accommodations just described, DirecTV 

did not “reasonably” accommodate her because it never provided her with a functional 

second monitor, did not offer her the position as Yokers’ administrative assistant, and did 

not offer additional accommodations once it was evident that the initial accommodations 

were ineffective. Not so. As we have said, FEHA does not obligate an employer to 

choose the best accommodation or the specific accommodation sought by a disabled 

employee—it requires only that the accommodation chosen be “reasonable.” (Hanson v. 

Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228; § 12940, subds.(a) & (m).) The 

substantial evidence at trial supported the jury’s finding that under the facts of this case, 

the accommodations provided plaintiff were reasonable.

II.

The Trial Court Erred in Summarily 

Adjudicating Plaintiff’s Punitive Damages Claim

A. Summary Adjudication Standard of Review 

A defendant moving for summary judgment or summary adjudication “bears the 

burden of persuasion that there is no triable issue of material fact and [the defendant] is

entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 

25 Cal.4th 826, 850 (Aguilar).) “To meet that burden, a defendant must show one or 

more elements of the cause of action cannot be established, or that there is a complete 

defense to that cause of action. (Ibid.; § 437c, subd. (p)(2).) To show the plaintiff cannot 

establish at least one element of the cause of action, the defendant must show ‘the 

plaintiff does not possess, and cannot reasonably obtain, needed evidence.’ (Aguilar, at 

p. 854.) If the defendant does not present sufficient evidence to meet its initial burden, 

the trial court must deny the motion for summary judgment or summary adjudication. 

(Id. at p. 850.) 

“If the defendant meets its initial burden of production, the burden shifts to the 

plaintiff to set forth specific facts showing that a triable issue of material fact exists as to 

the cause of action or a defense thereto. (Aguilar, supra, 25 Cal.4th at p. 849.) If the 

plaintiff meets that burden, summary judgment or summary adjudication should be 
34

denied. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889.) If not, summary judgment 

or summary adjudication for the defendant is appropriate. (Ibid.) 

“On appeal, we review the trial court’s ruling on a motion for summary judgment 

or summary adjudication de novo, liberally construe the evidence in favor of the party 

opposing the motion, and resolve all doubts concerning the evidence in favor of the 

opposing party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) In so 

doing, we resolve all doubts regarding whether any triable issue of material fact exists in 

favor of the party opposing the motion for summary judgment or summary adjudication. 

(Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)” (Guess v. 

Bernhardson (2015) 242 Cal.App.4th 820, 825-826.)

B. Corporate Liability for Punitive Damages

Civil Code section 3294, subdivision (a) provides that punitive damages may be 

awarded “for the breach of an obligation not arising from contract, where it is proven by 

clear and convincing evidence that the defendant has been guilty of oppression, fraud, or 

malice.” Section 3294, subdivision (b) limits the liability of a corporation to acts ratified, 

authorized, or committed by a corporate officer, director, or managing agent. (Weeks v. 

Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1151.)

In White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567 (White), the Supreme 

Court explained that managing agents are “those corporate employees who exercise 

substantial independent authority and judgment in their corporate decisionmaking so that 

their decisions ultimately determine corporate policy.” “[T]o demonstrate that an 

employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a 

plaintiff seeking punitive damages would have to show that the employee exercised 

substantial discretionary authority over significant aspects of a corporation’s business.” 

(White, at p. 577.) More recently, the court clarified that “[w]hen we spoke in White

about persons having ‘discretionary authority over . . . corporate policy’ (White, supra, 

21 Cal.4th at p. 577), we were referring to formal policies that affect a substantial portion 

of the company and that are the type likely to come to the attention of corporate 

leadership. It is this sort of broad authority that justifies punishing an entire company for 
35

an otherwise isolated act of oppression, fraud, or malice.” (Roby v. McKesson Corp. 

(2009) 47 Cal.4th 686, 714-715.)

“ ‘The scope of a corporate employee’s discretion and authority under our 

[managing agent] test is therefore a question of fact for decision on a case-by-case basis.’ 

([White, supra, 21 Cal.4th] at p. 567, italics added.) If there exists a triable issue of fact 

regarding whether a corporate employee is a managing agent under the White test, that 

factual question must be determined by the trier of fact and not the court on a motion for 

summary adjudication. (§ 437c, subds.(c), (f); Aguilar, supra, 25 Cal.4th at pp. 856-857; 

cf. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 63.)” (Davis v. Kiewit 

Pacific Co. (2013) 220 Cal.App.4th 358, 366 (Davis).)

C. Triable Issues of Material Fact Exist Regarding Whether Cope, 

Yokers, and/or Ward Were Managing Agents

In Davis, supra, 220 Cal.App.4th 358, the plaintiff sued her former employer for 

discrimination, harassment, and retaliation in violation of FEHA. Her complaint alleged

that the employer’s actions were malicious and oppressive and were committed and/or 

ratified by the employer’s managing agents, and it included a prayer for punitive 

damages. (Id. at pp. 361-362.) The employer moved for summary adjudication of the 

punitive damages claim, asserting plaintiff could not recover punitive damages as a 

matter of law because no officer, director, or managing agent of the employer engaged in 

any oppressive, malicious, or fraudulent conduct against plaintiff. The trial court granted 

the motion, and plaintiff appealed. (Id. at p. 362.)

The Court of Appeal reversed. It noted that in support of summary adjudication, 

the employer submitted the declarations of the two employees about whom plaintiff 

complained. Preedy, the manager of the project on which plaintiff had worked, stated in 

his declaration as follows: “. . . I am not an officer or a director of Kiewit. As a Kiewit 

employee, I have never drafted corporate policy or had substantial discretionary authority 

over decisions that ultimately determine Kiewit’s corporate policy. The only role that I 

play with respect to Kiewit’s anti-harassment and EEO [equal employment opportunity] 

policies is to ensure that they are followed on the job.” Lochner, the company’s EEO 
36

officer, submitted a similar declaration, as follows: “. . . As a Kiewit employee, I have 

never had substantial discretionary authority over decisions that ultimately determine 

Kiewit’s corporate policy. I do not write or recommend implementation of any human 

resources policies and procedures.” (Davis, supra, 220 Cal.App.4th at p. 367.)

The Court of Appeal concluded that these declarations did not satisfy the 

employer’s summary judgment burden to make a prima facie showing of the 

nonexistence of triable issues of material fact. It explained: “[The employer] had the 

initial burden to produce sufficient evidence to make a prima facie showing that there 

were no triable issues regarding whether Preedy . . . (or any other . . . managers or 

employees involved in the incident) were managing agents of [the employer]. . . . 

However, the language [of Preedy’s declaration] states a legal conclusion by simply 

parroting the White[, supra, 21 Cal.4th 563] standard. In White, the California Supreme 

Court stated ‘managing agents’ are employees who ‘exercise[] substantial discretionary 

authority over decisions that ultimately determine corporate policy.’ (White, supra, 

21 Cal.4th at p. 573, italics added.) [Employer] cannot satisfy its initial burden of 

production of evidence by making a conclusory statement of law, whether directly or 

through a declaration of one of its employees . . . . [Employer] had the initial burden to 

produce sufficient evidence to make a prima facie showing that there was no triable issue 

regarding whether Preedy was a managing agent of [employer]. We conclude 

[employer], by simply restating the applicable legal standard under White for the 

determination of whether Preedy was its managing agent, did not satisfy its initial burden 

of production.

“Furthermore, to the extent [employer] also relies on Preedy’s additional 

statements that he did not draft Kiewit’s corporate policies and only ensured that its 

antiharassment and EEO policies were followed on the job, that statement was 

insufficient to satisfy [employer’s] initial burden of production to make a prima facie 

showing that Preedy was not its managing agent. Preedy’s declaration did not contain a 

sufficient description of his job duties and responsibilities and the nature and extent of his 

authority and discretion as the Project’s manager, as well as his exercise of that authority 
37

and discretion, to support a reasonable inference that he did not ‘exercise[] substantial 

discretionary authority over [significant] aspects of [employer’s] business.’ (White, 

supra, 21 Cal.4th at p. 577, italics added.) Accordingly, we conclude [employer] did not 

carry its initial burden of production to make a prima facie showing that Preedy was not 

its managing agent. Therefore, the trial court erred by concluding there was no triable 

issue of material fact whether Preedy was a managing agent of [employer].” (Davis, 

supra, 220 Cal.App.4th at pp. 369-370.) The court reached a similar conclusion as to 

EEO officer Lochner.

The present case is indistinguishable from Davis. In support of summary 

adjudication, DirecTV submitted the declaration of Anthony Cope, which stated in 

relevant part that Cope had been the Director of Traffic Operations since July 1999 and 

was the person responsible for the decision to terminate plaintiff. As Director of Traffic 

Operations, Cope supervised ten employees and “over[saw] the general activities of the 

Traffic Operations department and the managers within the department.” However, Cope 

said he did “not affect corporate policy for the company. I have no discretion or 

independent authority over decisions that ultimately determine corporate policy and do 

not conduct core business activities for the company.”

Subsequently, with its reply brief, DirecTV submitted the declarations of Ward 

and Yokers, which stated as follows:

Ward: “I am currently employed by DirecTV as the Senior Vice President of 

Production and Traffic Operations. I have held this position since April of 2011. In my 

capacity as Senior Vice President of Production and Traffic Operations, I do not affect 

corporate policy for the company. I have no discretion or independent authority over 

decisions that ultimately determine corporate policy and do not conduct core business 

activities for the company. The title of my position is functional, as I am not a corporate 

officer of DirecTV.”

Yokers: “I am currently employed by DirecTV as the Vice President of the Traffic 

Department. I have held this position since 2002. In my capacity as Vice President of 

Traffic, I do not affect corporate policy for the company. I have no discretion or 
38

independent authority over decisions that ultimately determine corporate policy and do 

not conduct core business activities for the company. The title of my position is 

functional, as I am not a corporate officer of DirecTV.”

Like Preedy’s declaration in Davis, the declarations of Cope, Yokers, and Ward in 

the present case simply restate the legal standard under White. The declarations do not 

contain sufficient descriptions of the individuals’ job duties and responsibilities to 

support a reasonable inference that the declarants do not have “substantial discretionary 

authority over significant aspects of [DirecTV’s] business.” Accordingly, DirecTV did 

not carry its initial burden to make a prima facie case that Cope, Yokers, and Ward were 

not managing agents, and the trial court erred by granting summary adjudication on this 

basis. 

D. Triable Issues of Material Fact Regarding Malice, Fraud, or 

Oppression

Having concluded that there are triable issues of material fact as to whether Cope, 

Yokers, and/or Ward are managing agents, we must reverse the summary adjudication of 

punitive damages unless we conclude there are no triable issues of fact as to whether any 

of these men acted toward plaintiff with malice, fraud or oppression. (Civ. Code, § 3294, 

subd. (a).) We do not so conclude. 

“Malice” is defined in Civil Code section 3294 as conduct “which is intended by 

the defendant to cause injury to the plaintiff or despicable conduct which is carried on by 

the defendant with a willful and conscious disregard of the rights or safety of others.” 

(Subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to 

cruel and unjust hardship in conscious disregard of that person’s rights.” (Subd. (c)(2).) 

“The adjective ‘despicable’ used in section 3294 refers to ‘circumstances that are “base,” 

“vile,” or “contemptible.” ’ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 

704, 725.)” (Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.)

We have already concluded that there is sufficient evidence to support the jury’s 

determination that DirecTV intentionally discriminated against plaintiff on the basis of 

her disability. Relying on the same evidence, a jury reasonably could conclude that by 
39

terminating plaintiff because of her disability and then attempting to hide the illegal 

reasons for its decision with a false explanation, DirecTV acted in a way that was base, 

contemptible or vile, and in conscious disregard of plaintiff’s rights. (See Cloud v. 

Casey, supra, 76 Cal.App.4th at pp. 911-912 [evidence supporting jury’s determination 

that defendant intentionally discriminated against plaintiff because of her gender could 

also support award of punitive damages: “The jury could properly conclude that the 

[defendants] intentionally discriminated by denying Ms. Cloud a promotion based on 

gender, then attempted to hide the illegal reason for their decision with a false 

explanation, and that in this, they acted in a manner that was base, contemptible or 

vile. . . . Evidence that the decisionmaker attempted to hide the improper basis with a 

false explanation also supports the jury’s determination that the conduct was willful and 

in conscious disregard of Ms. Cloud’s rights.”].)

Because there are triable issues of material fact as to plaintiff’s punitive damages 

claim, we reverse the grant of summary adjudication on this issue.

III.

Wrongful Termination Claim

Plaintiff’s counsel conceded at oral argument that even if the trial court erred in 

summarily adjudicating plaintiff’s wrongful termination claim, a new trial is not 

warranted because any wrongful termination damages would be duplicative of the FEHA 

damages plaintiff has already recovered. We therefore do not consider on the merits 

whether there were triable issues of material fact as to plaintiff’s wrongful termination 

claim.
40

DISPOSITION

The order granting summary adjudication is reversed to the extent it denied 

plaintiff’s claim for punitive damages and the matter is remanded for further proceedings. 

In all other respects, the summary adjudication order and the judgment are affirmed. 

Plaintiff shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

JONES, J.*

 

*

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.