Bernal v. Kaiser Foundation Hospitals CA2/1 ( 2022 )

Filed 9/1/22 Bernal v. Kaiser Foundation Hospitals CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
ROSEMARIE BERNAL, B309059
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18STCV03901)
v.
KAISER FOUNDATION
HOSPITALS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Rafael A. Ongkeko, Judge. Affirmed.
Gusdorff Law, Janet Gusdorff; Law Office of David R.
Denis and David Robert Denis for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza and Scott M. Klausner
for Defendant and Respondent.
____________________________
The trial court granted summary judgment in favor of
defendant and respondent Kaiser Foundation Hospitals (Kaiser)
and against plaintiff and appellant Rosemarie Bernal on her
cause of action for wrongful termination in violation of public
policy and her claims under the Fair Employment and Housing
Act (FEHA, Gov. Code, § 12900 et seq.)1 and the California
Family Rights Act (CFRA). Bernal’s claims arise out of her
employment as a peripherally inserted central catheter (PICC)
nurse at Kaiser. Among other things, Bernal avers that her
supervisors at Kaiser set her up for failure by forcing her to
undergo evaluations of her competency (validations) conducted by
unqualified personnel, and later terminating her for failing to
pass those validations. Regarding her FEHA claims, Bernal
alleges Kaiser discriminated against her because of a disability;
retaliated against her for engaging in conduct protected by
FEHA; failed to provide reasonable accommodation and
participate in the interactive process vis-à-vis her disability; and
failed to prevent violations of FEHA.
Bernal fails to demonstrate the trial court erred in granting
summary judgment. First, we conclude Bernal exhausted only
the FEHA claims arising out of her competency validations and
subsequent termination. Further, we reject Bernal’s FEHA
discrimination and retaliation causes of action because Kaiser
advanced a legitimate, nondiscriminatory/nonretaliatory reason
for terminating Bernal, and she has not shown a triable issue
regarding whether her supervisors discriminated against her
based on an actual or perceived disability or retaliated against
1 Undesignated statutory citations are to the Government
Code.
2
her for engaging in conduct she reasonably believed FEHA
protects. Bernal’s reasonable accommodation and interactive
process claims fail because she does not establish a triable issue
concerning whether Kaiser failed to provide her with a
reasonable accommodation for an actual or perceived disability.
Lastly, Bernal has abandoned her CFRA claims, and her failure
to prevent FEHA cause of action and wrongful termination claim
fail because they are predicated on the viability of her other
claims, for which there is no triable issue of material fact.
We thus affirm without addressing Kaiser’s other arguments in
support of the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
We summarize only those facts pertinent to our disposition
of this appeal.
1. Bernal’s tenure at Kaiser’s LAMC from 2010 to 2015
In August 2010, Kaiser hired Bernal as a PICC nurse at
Kaiser’s Los Angeles Medical Center (LAMC).
2 Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s summary judgment
order and the parties’ filings. (See Baxter v. State Teachers’
Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing
the summary of facts provided in the trial court’s ruling];
Standard of Review, post [noting that the trial court’s orders are
presumed correct]; Artal v. Allen (2003) 111 Cal.App.4th 273,
275, fn. 2 (Artal) [“ ‘[B]riefs and argument . . . are reliable
indications of a party’s position on the facts as well as the law,
and a reviewing court may make use of statements therein as
admissions against the party.’ ”].)
3
In 2014, Bernal had surgery for carpal tunnel syndrome.
She went on leave for one and a half months following that
surgery. Bernal underwent another surgery for this condition in
June 2015. During the month immediately preceding this second
surgery, Bernal was placed on modified duty, and after the
surgery, Bernal took a medical leave of absence until
August 23, 2015.
Bernal alleges that in 2014 and 2015, LAMC Department
Administrator Emily-Joy Flynn and LAMC Assistant
Department Administrator Rodrigo Taad discriminated against
her on account of her carpal tunnel syndrome and retaliated
against her for taking leaves of absence and being on modified
duty. These allegations of wrongful conduct include “Flynn
passing . . . Bernal over for a promotion after . . . Bernal took a
medical leave of absence for her carpal tunnel and instead[ ]
giving the job to a less-qualified nurse who did not have any
physical condition; . . . Taad disregarding . . . Bernal’s need for
and entitlement to accommodation for her carpal tunnel
including [her] modified work schedule, and then bad-
mouthing . . . Bernal to her co-workers and subordinates; . . .
[and] Taad attributing . . . Bernal with negative attendance on
her performance evaluation . . . .”
2. Bernal’s transfer to West L.A., the incident at West
L.A., and Bernal’s attempts to transfer back to LAMC
In January 2016, Bernal transferred to Kaiser’s West
Los Angeles facility (West L.A.).3 “Bernal had an incident in the
3 Bernal claims she decided to transfer to West L.A. to
escape from Flynn’s and Taad’s “harassment/discriminatory
treatment.” (Boldface omitted.)
4
initial case to which she was assigned” at West L.A. Bernal
claims that “[t]he catheter retreated partially into the patient’s
arm and neither [she nor the supervising nurse were] able to
retrieve the catheter.” On the other hand, Kaiser asserts that
“Bernal lost the PICC line in the patient’s arm” and “made an
unauthorized incision into [the] patient” “in an effort to retrieve
the catheter.” (Some capitalization omitted.) Kaiser claims “[t]he
patient eventually had to be taken to surgery.” Although Bernal
insists “she had followed the proper protocol” and “was not
disciplined due to the incident,” there is no dispute that Kaiser
deemed Bernal to have failed her probationary period at
West L.A.
Bernal thereafter attempted to secure a transfer back to
LAMC. According to Bernal, Flynn falsely told her in
February 2016 that Bernal’s position had been filled in an
attempt to prevent her from returning to LAMC. Bernal claims
that “[t]hrough the advocacy of private counsel, Kaiser LAMC
rehired . . . Bernal and indicated a return start date of May 22,
2016.” Bernal took a medical leave of absence from May 9, 2016
to June 26, 2016, which Bernal claims she requested “[d]ue to the
severe stress, depression and anxiety caused by not knowing
when or if she would be returned to work.”
3. Events occurring after Bernal returned to LAMC in
June 2016
On June 27, 2016, Bernal returned to work at LAMC. “In
the time Bernal was away from LAMC, oversight of the PICC
department was transferred from Bernal’s former man[a]gers
(Taad and Flynn) to a new set of administrators—Julius Garcia
and Shelley Stanovich.”
5
On the date of Bernal’s return to LAMC, Stanovich and
Garcia met with her. Bernal asserts that at this meeting,
Stanovich and Garcia denied Bernal’s request for union
representation, changed Bernal’s work schedule, placed her on a
10-day probation, and told her that she was subject to a
competency validation in which another Kaiser employee would
observe her perform PICC line insertions for 10 adults and three
children. Bernal also claims that upon her return to LAMC,
Stanovich and Garcia reduced her rate of pay to less than what
she had been paid prior to her transfer.4
Garcia asserts that during the June 27, 2016 meeting,
Bernal “was having difficulty speaking[, h]er speech was slow,
and she appeared sluggish.” Similarly, Stanovich claims
“[d]uring that meeting, . . . Bernal appeared foggy[, s]he seemed
sluggish, and her speech was slow and sometimes lacked
coherence.”
Between June 28, 2016 and July 26, 2016, Bernal
completed the competency validation by performing PICC line
insertions for 10 adults and three children; a fellow nurse served
as a “preceptor” by observing Bernal perform these procedures.
Bernal claims that “Stanovich arbitrarily rejected” this
4 Bernal concedes that the pay discrepancy “was corrected
after she complained to LAMC’s Department of Human
Resources.” Additionally, the portions of the record she cites in
connection with the pay issue show only that her rate of pay had
been reduced when she returned to LAMC, and not that
Stanovich or Garcia were responsible for decreasing her rate of
pay. Bernal also seems to have admitted in her deposition
testimony that LAMC’s human resources department told her
after the June 27, 2016 meeting that she was not subject to a 10-
day probation.
6
“validation of . . . Bernal, deciding to change the validation
structure” and require Bernal to submit to a second competency
validation whereas Kaiser claims that Stanovich decided to
subject Bernal to another competency validation because “[t]he
information on the submitted form [for the validation] was too
sparse for Stanovich to evaluate how Bernal performed in each
insertion . . . .” Additionally, on August 2, 2016, Bernal sent an
e-mail to the human resources department, with Garcia copied as
a recipient, wherein she complained that Garcia was
“consistently” harassing and intimidating her by expressing
“reservations regarding [her] competency . . . .”
Bernal took medical leave from August 3, 2016 to
September 21, 2016. Bernal alleges that “Kaiser was made
aware of the fact that, as of her return to LAMC [in] 2016, . . .
Bernal’s leaves were instigated by work-induced stress,
precipitated by [Stanovich’s and Garcia’s] acts of discrimination
and harassment.”
Upon Bernal’s return to LAMC on September 21, 2016, she
underwent the second competency validation. Bernal asserts this
validation was “tainted” in several respects—e.g., the nurse who
conducted the validation “was new to Kaiser[ ] and had no PICC
certification or knowledge”; and this nurse “completed the
validation tool without any help from” a specialized nurse who
had observed the process. Bernal contends that the two nurses
should not have participated in the validation because one of
them was “less senior to her” and the other was “a non-PICC
certified nurse.” According to Bernal, she should have been
“validated by BARD, an outside independent agency.”
Kaiser asserts that Bernal failed the second competency
validation by “violat[ing] several important patient-safety
7
practices during the four procedures she was permitted to
perform.” Bernal counters that the nurse who completed the
validation tool had only a “cursory” “understanding of the Kaiser
PICC protocol”; “Bernal performed some of the steps articulated
within the tool in an order that was different than that which
was reflected on the tool itself”; and the nurse who completed the
validation tool “misinterpreted several steps taken by . . .
Bernal.” Bernal further alleges that Stanovich falsely claimed
that the other nurse who observed the second validation
“ ‘verbalized concerns regarding techniques that . . . Bernal had
failed to follow that put the patient at risk[.]’ ”
On September 23, 2016, Bernal sent an e-mail to Garcia,
with Stanovich and the human resources department copied as
recipients, in which she complained of the procedures utilized
during the second competency validation. In the e-mail, Bernal
stated: “This kind of harassment is another desperate move to
continue your obvious retaliation to undermine my performance.”
Garcia placed Bernal on investigatory suspension following
the second competency validation. On November 17, 2016,
Bernal was subjected to another competency validation. Kaiser
claims that Bernal did not pass this validation either. Bernal
complains that the same non-PICC certified nurse who completed
the prior validation—and not BARD—conducted this validation.
Later on November 17, 2016, Garcia again placed Bernal on
investigatory suspension.
On November 19, 2016, Bernal took a medical leave of
absence, which she extended such that it was scheduled to end on
April 17, 2017.5
5 Bernal claims she took this medical leave of absence
because she was “diagnosed with major depression . . . .” She
8
On February 10, 2017, Stanovich sent a letter to Bernal,
stating, “It has been brought to management’s attention that you
have obtained or continue employment elsewhere, performing
similar work, while on leave from Kaiser . . . .” Stanovich further
stated, “[Kaiser] deems your actions a potential failure to adhere
to established policies and specifically the expectation that you
will be honest and accurate in the information provided or
documented. Submitting work status reports placing you off
work while engaging in other work/activities that are
inconsistent with your reported medical restrictions is a serious
offense and may constitute fraud.” Stanovich closed the letter by
requesting that Bernal contact her by February 17, 2017 to
“discuss this matter,” and by stating that “[f]ailure to make
contact with management by [that] date w[ould] be considered
job abandonment and subject [Bernal] to termination effective
February 17, 2017.”
It is undisputed that Bernal did not respond to Stanovich’s
letter.6 On February 17, 2017, Stanovich terminated Bernal.
4. The DFEH complaint and the trial court proceedings
On November 8, 2017, Bernal filed an administrative
complaint with the Department of Fair Employment and Housing
does not assert that Stanovich or Garcia was aware that she had
this condition. Rather, as we explain in Discussion, part B.3,
post, she claims Stanovich regarded or treated Bernal as having a
physical disability during that timeframe.
6 Bernal claims that, “[o]n the advice of her prior workers’
compensation attorney, . . . Bernal did not respond
to . . . Stanovich’s letter because she was still on her medical
leave.”
9
(DFEH) against Kaiser. That same day, DFEH issued her a right
to sue letter and informed her that the agency would “take no
further action on the complaint.”
On November 5, 2018, Bernal commenced suit against
Kaiser by filing a complaint, alleging the following eight causes of
action: (1) discrimination on the basis of disability under FEHA;
(2) retaliation under FEHA; (3) failure to participate in the
interactive process under FEHA; (4) failure to provide reasonable
accommodation under FEHA; (5) failure to prevent
discrimination, harassment, or retaliation under FEHA;
(6) violation of the CFRA; (7) retaliation for taking CFRA leave;
and (8) wrongful termination in violation of public policy.
On November 22, 2019, Kaiser moved for summary
judgment or, in the alternative, summary adjudication on each of
Bernal’s causes of action. Kaiser argued, among other
contentions, that res judicata barred all of Bernal’s claims; her
FEHA causes of action failed because she did not have a
qualifying disability; she could not recover on her FEHA
disability discrimination and retaliation causes of action because
Kaiser’s reason for terminating Bernal was legitimate; Kaiser
was entitled to judgment on Bernal’s FEHA failure to participate
in the interactive process and failure to provide reasonable
accommodation claims because she was not denied reasonable
accommodation; Bernal’s FEHA failure to prevent cause of action
failed because it was derivative of her discrimination and
retaliation claims, both of which failed; Bernal’s CFRA claims
failed because she was not entitled to leave under that statute
and the reason for her termination was legitimate; and she was
not entitled to relief on her wrongful termination claim. Kaiser
further contended that “the only claims at issue [in] this
10
litigation are those relating to Bernal’s . . . termination” because
the remainder of her claims was untimely or barred for failure to
exhaust administrative remedies.
Bernal opposed Kaiser’s motion, and Kaiser filed a reply to
Bernal’s opposition.
On July 14, 2020, the trial court granted Kaiser’s summary
judgment motion. The court ruled that res judicata did not bar
Bernal’s claims; Bernal’s causes of action were time-barred
except those arising on or after May 9, 2016; Bernal’s FEHA
causes of action failed because she did not demonstrate a triable
issue of material fact regarding whether she had a qualifying
disability; Bernal’s CFRA claims failed because she was not
entitled to leave under that statute and Kaiser had a legitimate,
nonretaliatory reason for terminating her; and “[b]ased on the
absence of any constitutional, statutory, or other public policy
violations, there [was] no basis for [Bernal’s] wrongful
termination claim.” The trial court entered judgment for Kaiser
on September 14, 2020. On November 13, 2020, Bernal appealed
the judgment.
STANDARD OF REVIEW
“ ‘We review the ruling on a motion for summary judgment
de novo, applying the same standard as the trial court.’
[Citation.] ‘Summary judgment is appropriate only “where no
triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law.” ’ [Citation.]”
(Barenborg v. Sigma Alpha Epsilon Fraternity (2019)
33 Cal.App.5th 70, 76.) “Under summary judgment law, ‘ “[t]here
is a triable issue of material fact if, and only if, the evidence
would allow a reasonable trier of fact to find the underlying fact
in favor of the party opposing the motion in accordance with the
11
applicable standard of proof.” [Citation.] . . . .’ [Citation.]”
(Lares v. Los Angeles County Metropolitan Transportation
Authority (2020) 56 Cal.App.5th 318, 331–332.)
“ ‘ “[D]e novo review [of an order granting summary
judgment] does not obligate us to cull the record for the benefit of
the appellant in order to attempt to uncover the requisite triable
issues. As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and,
therefore, to point out the triable issues the appellant claims are
present by citation to the record and any supporting authority.
In other words, review is limited to issues which have been
adequately raised and briefed.” ’ [Citation.]” (Los Angeles
Unified School Dist. v. Torres Construction Corp. (2020)
57 Cal.App.5th 480, 492 (Los Angeles Unified School Dist.); see
also Estate of Sapp (2019) 36 Cal.App.5th 86, 104 [“ ‘It is well
settled that all presumptions and intendments are in favor of
supporting the judgment or order appealed from, and that the
appellant has the burden of showing reversible error, and in the
absence of such showing, the judgment or order appealed from
will be affirmed.’ ”].)
“We affirm the trial court’s decision [granting a summary
judgment motion] if it is correct on any ground the parties had an
adequate opportunity to address in the trial court, regardless of
the reasons the trial court gave.” (See Jameson v. Pacific Gas &
Electric Co. (2017) 16 Cal.App.5th 901, 908–909; see also Estate
of Sapp, supra, 36 Cal.App.5th at p. 104 [“ ‘If the decision of a
lower court is correct on any theory of law applicable to the case,
the judgment or order will be affirmed regardless of the
correctness of the grounds upon which the lower court reached its
conclusion.’ ”].)
12
DISCUSSION
Much of the parties’ briefing focuses on whether Kaiser was
entitled to judgment as a matter of law on Bernal’s FEHA
discrimination and retaliation causes of action. Also, as we
explain in Discussion, parts C and E, post, several of Bernal’s
other causes of action fail in part because her discrimination and
retaliation causes of action are not viable. Given the importance
of Bernal’s discrimination and retaliation claims to resolving this
appeal, we begin our discussion with a summary of the law
governing those claims.
“FEHA declares it an ‘unlawful employment practice’ for
any employer ‘because of the race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation of
any person, . . . to discharge the person from employment . . . , or
to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.’ (Gov. Code, § 12940,
subd. (a).) The statute also prohibits employers from retaliating
against employees for engaging in protected activity—i.e., for
‘discharg[ing], expel[ling], or otherwise discriminat[ing] against
any person because the person has opposed any practices
forbidden under this part . . . .’ (Id., § 12940, subd. (h).)”
(Joaquin v. City of Los Angeles (2012) 202 Cal.App.4th 1207, 1219
(Joaquin).) Similarly, FEHA bars employers from “retaliat[ing]
or otherwise discriminat[ing] against a person for requesting
accommodation [for the known physical or mental disability of an
employee], regardless of whether the request was granted.” (See
§ 12940, subds. (m)(1)–(m)(2).)
13
“California resolves employment discrimination claims by
applying a burden-shifting procedure. Under this test, the
plaintiff bears the initial burden of proving a prima facie case of
discrimination by presenting evidence showing: (1) he is a
member of a protected class, (2) he was qualified for the position
sought or was performing competently in the position held,
(3) he suffered an adverse employment action, and (4) some other
circumstance suggests a discriminatory motive.” (Foroudi v. The
Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007 (Foroudi).)
“Once the employee sets forth a prima facie case [of
discrimination], the burden shifts to the employer to present
evidence of a legitimate, nondiscriminatory reason for the
adverse employment action. [Citation.] If the employer does so,
the burden then shifts back to the employee to ‘offer substantial
evidence that the employer’s stated nondiscriminatory reason for
the adverse action was untrue or pretextual, or evidence the
employer acted with a discriminatory animus, or a combination of
the two, such that a reasonable trier of fact could conclude the
employer engaged in intentional discrimination.’ [Citation.]”
(Foroudi, supra, 57 Cal.App.5th at p. 1007.)
“ ‘[I]n order to establish a prima facie case of retaliation
under the FEHA, a plaintiff must show (1) he or she engaged in a
“protected activity,” (2) the employer subjected the employee to
an adverse employment action,[7] and (3) a causal link existed
7 “[T]he [adverse] employment actions that can give rise to
a claim for retaliation are identical to the actions that can give
rise to a claim for discrimination” (see Jones v. Lodge at Torrey
Pines Partnership (2008) 42 Cal.4th 1158, 1168), i.e., “ ‘actions
that are reasonably likely to adversely and materially affect an
employee’s job performance or opportunity for advancement.’
[Citation.]” (See Doe v. Department of Corrections &
14
between the protected activity and the employer’s action. . . .
Once an employee establishes a prima facie case, the employer is
required to offer a legitimate, nonretaliatory reason for the
adverse employment action. . . . If the employer produces a
legitimate reason for the adverse employment action, the
presumption of retaliation “ ‘ “drops out of the picture,” ’ ” and the
burden shifts back to the employee to prove intentional
retaliation.’ [Citation.]” (Jumaane v. City of Los Angeles (2015)
241 Cal.App.4th 1390, 1408 (Jumaane).)
With these principles in mind, we turn to the substance of
Bernal’s challenge to the trial court’s decision.
A. Bernal Exhausted Only Those FEHA Claims Arising
Out of Her Competency Validations and the Ensuing
Termination
Kaiser argued in its summary judgment motion that Bernal
failed to exhaust all her FEHA claims except those relating to her
termination. Kaiser reasserts that contention in the respondent’s
brief. With one exception, we agree with Kaiser.
“Before filing a civil action alleging FEHA violations, an
employee must exhaust his or her administrative remedies with
DFEH. Specifically, the employee must file an administrative
complaint with DFEH identifying the conduct alleged to violate
FEHA. At the conclusion of the administrative process, which
may or may not include an investigation or administrative
remedies, DFEH generally issues the employee a right-to-sue
notice.” (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 153
(Wills).) Upon an employee’s commencement of a civil action
Rehabilitation (2019) 43 Cal.App.5th 721, 734 (Department of
Corrections & Rehabilitation).)
15
thereafter, the “permissible scope” of that action is limited “to the
information brought to DFEH’s attention . . . or to information
DFEH reasonably should have discovered during its
investigation.” (See id. at p. 156; see also id. at pp. 157, 159
[concluding that an employee did not exhaust certain FEHA
causes of action because she “failed to present any evidence
showing these claims surfaced in the administrative process or
explain how these claims should have been discovered during a
reasonable investigation”].)
Kaiser’s description of Bernal’s administrative complaint is
accurate, that is, “threadbare and boilerplate.” The only date
identified in that complaint is “February 17, 2017,” which is the
date of Bernal’s termination. The complaint lists purported
adverse employment actions and other alleged misconduct in a
conclusory fashion, e.g., Kaiser “terminated [Bernal] because of
her disability and because she complained of disability
discrimination, harassment and retaliation,” “denied her the
right to participate in a good faith interactive work process,” and
“denied [her] a reasonable accommodation . . . .” The complaint,
however, provides no details to support these conclusory
assertions.
We conclude that, by asserting in the DFEH complaint that
Kaiser’s decision to terminate her amounted to disability
discrimination and unlawful retaliation, and by identifying the
date of that adverse employment action in that document, Bernal
brought FEHA claims predicated on her termination to DFEH’s
attention. (See Wills, supra, 195 Cal.App.4th at p. 156.) In
addition, had DFEH investigated Bernal’s administrative
complaint, it likely would have uncovered the multiple
competency validations that Stanovich and Garcia required her
16
to undertake, given that Bernal offered evidence that Stanovich
and Garcia terminated her in part because she failed to pass
these validations. (See Discussion, part B, post.) Thus, Bernal
exhausted her FEHA claims arising out of her competency
validations and the resulting termination. (See Wills, at p. 156.)
The same is not true for Bernal’s complaints of other
unlawful conduct. These allegations include wrongful acts
allegedly perpetrated by Flynn and Taad before Bernal returned
to LAMC from West L.A., such as: “Flynn passing . . . Bernal
over for a promotion after . . . Bernal took a medical leave of
absence for her carpal tunnel[;] . . . Taad disregarding . . .
Bernal’s need for and entitlement to accommodation for her
carpal tunnel[,] . . . and then bad-mouthing . . . Bernal to her co-
workers and subordinates; . . . Taad attributing . . . Bernal with
negative attendance on her performance evaluation; and . . .
Flynn attempting to have . . . Bernal resign rather than transfer
to West L.A. and subsequently attempting to thwart . . . Bernal’s
return to LAMC by lying about the job vacancy.” They also
include purported misconduct by Stanovich and Garcia unrelated
to the competency validations and Bernal’s termination, e.g.,
“improperly contacting [Bernal in June 2016] to return to work
despite her approved leave of absence; violating seniority by
changing her work schedule to undesirable hours; improperly
placing her on probation immediately upon her return [to
LAMC]; [and] miscalculating her pay by placing her on a wrong
salary step . . . .”
Bernal makes no effort to show that an administrative
investigation into her DFEH complaint would have revealed any
claims other than those concerning the competency validations
and her ensuing termination. Instead, she claims her “DFEH
17
complaint was sufficient to trigger the continuing violations
doctrine” because it “refers to her employment people with a
broad brush without a time limitation and asserts the continuing
violations doctrine.” We fail to see how Bernal’s invocation of the
continuing violations doctrine in her administrative complaint
establishes that DFEH should have discovered her other
complaints that are not identified in that document. Permitting
her vague and conclusory administrative complaint to exhaust
every allegation of misconduct occurring during her tenure at
Kaiser would render impracticable “[t]he purpose of FEHA’s
administrative exhaustion requirement,” that is, “to ensure
DFEH is provided the opportunity to resolve disputes and
eliminate unlawful employment practices through conciliation.”
(See Wills, supra, 195 Cal.App.4th at p. 156.)
Accordingly, we address the merits of only those FEHA
claims arising out of the competency validations and Bernal’s
termination thereafter.
B. Bernal’s Discrimination and Retaliation Causes of
Action Fail Because She Does Not Establish a Triable
Issue Regarding Whether Kaiser Terminated Her
with Discriminatory or Retaliatory Animus
In its summary judgment motion, Kaiser argued that,
regardless of whether Bernal could establish a prima facie case of
discrimination and retaliation under FEHA, each claim failed
because Kaiser had a legitimate reason for terminating her—i.e.,
“it suspected Bernal was lying about her medical leave in order to
avoid the consequences of her failed validations, and Bernal
refused to participate in any inquiry into the matter.” Kaiser
reasserts this argument on appeal. In resolving this issue, we
assess whether: (a) Kaiser presented evidence it discharged
18
Bernal for a legitimate, nondiscriminatory/nonretaliatory reason
and, if so, (b) Bernal established a triable issue of fact on whether
Kaiser’s decision to terminate her was the product of
discriminatory or retaliatory animus. (See Foroudi, supra,
57 Cal.App.5th at p. 1007 [discussing this burden-shifting
framework in the context of discrimination claims]; Jumaane,
supra, 241 Cal.App.4th at p. 1408 [same as to retaliation claims].)
In the course of analyzing whether Bernal could show she
was actually disabled, the trial court remarked: “The facts
surrounding [Bernal’s] . . . termination[ ] establish that Bernal
was not terminated because of her being on leave or having a
stress-related disability. It was undisputed that Bernal
performed similar work elsewhere without authorization while
she was on leave, constituting fraud and a violation of Kaiser
policy. Had Bernal not done that, her medical leave would have
continued undisturbed. While Bernal attempts to raise a triable
issue of pretext by claiming Kaiser’s other nurses [were] doing
the same thing or even a nationwide nurse shortage, she fails to
show that other Kaiser nurses on disability or medical leave
actually performed unauthorized work elsewhere without being
terminated so as to raise a triable issue.”
On appeal, Bernal does not contest the trial court’s
conclusions that (1) she performed unauthorized work elsewhere
when she was on medical leave; and (2) she has not shown that
other Kaiser nurses also performed unauthorized work but
were not terminated. These unchallenged conclusions indicate
that Kaiser’s decision to terminate Bernal was not motivated by
discriminatory or retaliatory animus.8
8 Although the trial court stated in the summary judgment
ruling that it did not reach whether Kaiser terminated Bernal for
19
Instead of challenging the trial court’s conclusions, Bernal
suggests there exists a triable issue regarding whether “Kaiser’s
proffered (fraud) reason was not its actual reason for terminating
her,” meaning it was “a pretext for its actual, discriminatory
motive.” Specifically, Bernal claims the trial court “overlooked
[her] evidence” that Stanovich and Garcia decided to terminate
her based on the results of the competency validations. In
support of this contention, Bernal points out that “Stanovich
testified that . . . Bernal was also terminated for her failure to
re-validate,” and that Garcia had initially decided on
November 18, 2016 to terminate Bernal for “ ‘failure to meet
employment requirement’ ” but later canceled her termination
when Bernal was placed on medical leave.
As discussed below, we conclude Bernal has not established
a triable issue regarding whether the termination, and the
results of the competency validations upon which it was
predicated, were “ ‘the product of discriminatory or retaliatory
animus.’ ” (See Joaquin, supra, 202 Cal.App.4th at p. 1226, fn. 5
[holding that this question is “ ‘[t]he central issue’ ” in a
“a legitimate business reason” because Bernal had failed to
establish a prima facie case of discrimination under FEHA, the
court’s unchallenged conclusions regarding Kaiser’s stated
ground for ending Bernal’s employment are relevant to
our analysis of whether Kaiser had a legitimate,
nondiscriminatory/nonretaliatory reason for doing so. (See
Joaquin, supra, 202 Cal.App.4th at p. 1226, fn. 5 [“The
employer’s . . . articulation of a legitimate reason . . . can . . .
dispel the presumption of improper motive.”]; see also Estate of
Sapp, supra, 36 Cal.App.5th at p. 104 [noting that on appeal, a
trial court’s order is presumed to be correct and all intendments
and presumptions are construed in favor of the order].)
20
retaliation or discrimination case].) Accordingly, the trial court
did not err in entering judgment in Kaiser’s favor on Bernal’s
discrimination and retaliation claims.
1. Flynn’s and Taad’s alleged unlawful animus does not
taint the results of Bernal’s competency validations or
her subsequent termination
Bernal claims that she “offered a litany of evidence
supporting the reasonable inference” that the Kaiser personnel
who supervised her at LAMC before she transferred to West L.A.
in January 2016, Flynn and Taad, “harbored discriminatory
animus toward . . . Bernal based on her actual or perceived
disability (i.e., carpal tunnel, associated medical surgery and
leaves of absence[ ], and modified work requirements as a result
thereof).”9 Bernal further contends that Flynn and Taad
“ ‘poisoned the well’ to . . . Garcia and . . . Stanovich by
communicating to . . . Garcia . . . and . . . Stanovich the incidents
that ultimately formed the basis for the latter supervisors’
‘concerns’ about . . . Bernal’s competency.” Specifically, Bernal
presented evidence that “on May 9, 2016, . . . Flynn informed . . .
Garcia and . . . Stanovich about . . . Bernal’s experience while at
West L.A.” Moreover, Bernal presented evidence that on or about
9 Bernal does not contend she still had carpal tunnel
syndrome when she returned to LAMC in June 2016, or that
Stanovich and Garcia regarded or treated her as having that
condition. Instead, Bernal maintains (1) she “suffered from
carpal tunnel syndrome, necessitating two surgeries and
accommodations, including modified duty, in 2014 and 2015”; and
(2) she “alleged not only an actual physical disability during this
timeframe, but also that . . . Taad and . . . Flynn perceived her to
be disabled.” (Italics added.)
21
August 2, 2016, “Garcia told [her] that . . . Taad [and Flynn] had
informed him of an incident that occurred a few years prior [(i.e.,
in which Bernal was wrongfully accused of accessing a fistula)]
that formed the basis (along with the West L.A. incident) to
question her competency, and to justify the second re-validation.”
At most, Bernal has shown a triable issue of material fact
regarding whether Flynn’s and Taad’s animus toward her
influenced Stanovich’s and Garcia’s decision to require Bernal to
undergo a series of validations to assess her competency as a
PICC nurse. Although Bernal argues that “forcing her to be
validated and re-validated by inferior colleagues with improper
and unfair procedures” and her subsequent termination
constitute adverse employment actions, she does not direct us to
any evidence demonstrating the decisions to assess and reassess
her competency—in and of themselves—constitute adverse
employment actions. (Italics added.) Nor is it apparent that
simply subjecting an employee to multiple performance
evaluations constitutes an action that satisfies the standard for
an adverse employment action—i.e., an act that is “ ‘reasonably
likely to adversely and materially affect an employee’s job
performance or opportunity for advancement.’ [Citation.]”
(See Department of Corrections & Rehabilitation, supra,
43 Cal.App.5th at p. 734.) Instead, this appears to be “ ‘[m]inor
or relatively trivial adverse action[ ] or conduct by [an]
employer . . . that, from an objective perspective, [is] reasonably
likely to do no more than anger or upset an employee . . . .’
[Citation.]” (See ibid.)
This distinction between (a) the decision to subject Bernal
to competency validations on the one hand, and (b) the adoption
of supposedly improper and unfair procedures for those
22
competency validations and (c) terminating Bernal based on her
failure to pass those validations on the other, is critical to this
case. Even if Flynn’s and Taad’s alleged discriminatory or
retaliatory animus caused Stanovich and Garcia to undertake
decision (a), that fact alone would not give rise to liability under
FEHA.10 Flynn’s and Taad’s animus would be legally relevant
only if they “materially contributed” to decisions (b) and (c),
meaning that Stanovich and Garcia did not “break[ ] the chain of
causation by taking . . . truly independent action[s].” (See Reeves
v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 110, 114–115
& fn. 14, 116.)
Bernal does not identify evidence that Flynn and Taad
played any role in conducting, or determining the parameters of,
the competency validations, or in later terminating her. Rather,
Bernal admits Stanovich told Bernal upon her return to LAMC
that Bernal had to be “ ‘validated’ with 10 adults and 3 pediatric
patients,” Stanovich “rejected [the initial] validation” and
“decid[ed] to change the validation structure for” Bernal
thereafter, and Stanovich and Garcia later terminated Bernal in
part because of “her failure to re-validate.” Bernal also admits
that after Stanovich “reject[ed] . . . Bernal’s successful
validation, . . . Stanovich unilaterally created a new validation
tool that subjected . . . Bernal to additional validation.” (Italics
added.) Accordingly, we reject Bernal’s argument that “a jury
10 (See Department of Corrections & Rehabilitation, supra,
43 Cal.App.5th at p. 734 [“[A]n adverse employment action . . . is
an essential element of [discrimination and retaliation] claims.”];
Joaquin, supra, 202 Cal.App.4th at p. 1226, fn. 5 [indicating that
the adverse employment action must be “the product of
discriminatory or retaliatory animus” to give rise to liability].)
23
could find . . . Flynn[’s] and . . . Taad’s discriminatory intent
relevant to the adverse actions” that are properly before us—i.e.,
allegedly setting Bernal up to fail the competency validations and
terminating her as a result.11 (See Artal, supra, 111 Cal.App.4th
at p. 274, fn. 2 [noting that we may construe a statement in a
brief as an admission against the party making it].)
2. Bernal’s assertions that she (a) was actually disabled
and (b) reasonably believed she was actually disabled
do not salvage her discrimination and retaliation
claims
In its ruling on the summary judgment motion, the
trial court concluded “there is no triable issue of material fact
regarding whether [Bernal] had a qualified ‘disability’ under
FEHA—she did not.” In arriving at this conclusion, the court
relied on the Third District’s decision in Higgins-Williams v.
Sutter Medical Foundation (2015) 237 Cal.App.4th 78, which held
that “an employee’s inability to work under a particular
supervisor because of anxiety and stress related to the
supervisor’s standard oversight of the employee’s job performance
11 Insofar as Bernal claims the unfavorable results of the
competency validations, and the investigatory suspensions
resulting therefrom, constitute adverse employment actions, her
retaliation and discrimination causes of action would still fail.
For the reasons provided in Discussion, part B, Bernal has failed
to establish that the validation results were tainted by
discriminatory or retaliatory animus, which is a prima facie
element of both claims. (See Foroudi, supra, 57 Cal.App.5th at
p. 1007 [FEHA discrimination claims]; Jumaane, supra,
241 Cal.App.4th at p. 1408 [FEHA retaliation claims].)
24
does not constitute a mental disability under FEHA.”
(Higgins-Williams, at pp. 80, 85, italics omitted.)
In her opening brief, Bernal acknowledges the trial court’s
ruling on this issue but does not contest it. Rather, she claims
the trial court erred in “neglect[ing] to analyze whether a trier of
fact could find that Kaiser perceived or regarded [her] as having a
disability.”12
In response, Kaiser states that “Bernal has now abandoned
the position that she was actually disabled within the meaning
[of] FEHA” by “offer[ing] no argument on the issue . . . .” Kaiser
further argues that “[t]he trial court’s ruling in this regard [is]
sound.”
In her reply brief, Bernal argues for the first time that
Higgins-Williams’s holding is inapplicable because a reasonable
jury could find that “Stanovich’s actions were outside of the
normal supervisory oversight.” In support of this argument, she
cites 10 “factors” and supplies numerous record citations. She
then argues in a footnote that if we conclude she waived her
claim that she was actually disabled, we should allow her to “file
a supplemental brief” addressing that issue. Bernal further
suggests that Kaiser was not prejudiced by her discussion of this
issue in her reply because “Kaiser [had] already briefed [it.]” Yet,
she does not claim that Kaiser should have somehow anticipated
that she would rely upon the aforementioned 10 factors or the
record evidence allegedly supporting them.
Bernal may not avoid Higgins-Williams’s holding by
asserting a new theory in her appellate reply brief, to wit, that
12 That argument concerning the disabilities that
Stanovich and Garcia supposedly perceived or regarded Bernal as
having fails for the reasons provided in Discussion, part B.3, post.
25
Stanovich’s actions were beyond normal supervision, because
“[a]rguments presented for the first time in an appellant’s reply
brief are considered waived.” (Habitat & Watershed Caretakers v.
City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1292, fn. 6
(Habitat & Watershed Caretakers).) Insofar as Bernal requests
leave to file a supplemental brief, we reject that request as
procedurally improper because she should have submitted it in
an application or motion. (See Cal. Rules of Court, rule 8.50
[governing applications]; id., rule 8.54 [governing motions].) A
reply brief is not the proper occasion to seek that relief, especially
considering the fact that Kaiser has had no opportunity to
respond to the request in writing. (See id., rule 8.200(a)(4)
[“[Aside from appellant’s opening brief, respondent’s brief, and
appellant’s reply brief, n]o other brief may be filed except with
the permission of the presiding justice.”].)
Although Bernal may not obtain reversal of the trial court’s
judgment based on her supervisors’ alleged animus toward her
purported actual disability, we acknowledge that for the purposes
of her retaliation claim, protected activities include “oppos[ing]
conduct that the employee reasonably and in good faith believes
to be discriminatory, whether or not the challenged conduct is
ultimately found to violate the FEHA.’ [Citation.]” (See Dinslage
v. City and County of San Francisco (2016) 5 Cal.App.5th 368,
381 (Dinslage), italics added.) Under this standard, “ ‘a mistake
of either fact or law may establish an employee’s good faith but
mistaken belief that he or she is opposing conduct prohibited by
FEHA.’ [Citation.] In such cases, the question is the
26
reasonableness of the employee’s belief that he was opposing a
practice prohibited by the FEHA.”13 (Dinslage, at p. 381.)
Although Bernal claims she submitted multiple complaints
to Kaiser protesting Stanovich’s and Garcia’s alleged
“discriminatory, harassing, and retaliatory behavior,” she offers
no argument concerning the supposed reasonableness of her
erroneous belief that the stress caused by her supervisors’
standard oversight of her job performance constituted a disability
under FEHA. Nor is it apparent that her mistake of law
concerning that issue was reasonable, given that the
Third District issued the Higgins-Williams decision more than a
year before Stanovich and Garcia became her supervisors on
June 27, 2016. (See Higgins-Williams, supra, 237 Cal.App.4th at
p. 78 [issued on May 26, 2015]; see also Dinslage, supra,
5 Cal.App.5th at p. 382 [“The objective reasonableness of an
employee’s belief that his employer has engaged in a prohibited
employment practice ‘must be measured against existing
substantive law.’ ”].)
For the foregoing reasons, Bernal cannot establish a triable
issue regarding whether Kaiser subjected her to an adverse
employment action because of (a) an actual disability or (b) her
13 Although FEHA also bars an employer from
“retaliat[ing] or otherwise discriminat[ing] against a person for
requesting accommodation,” that prohibition is triggered only if
the employee has a “known physical or mental disability . . . .”
(See § 12940, subds. (m)(1)–(m)(2).) For the reasons discussed in
this section and in Discussion, part B.3, post, we conclude that
Bernal has failed to raise a triable issue on that point.
27
opposition to conduct that she reasonably believed violated
FEHA.14
3. Bernal’s claim that Stanovich and Garcia perceived
her to be disabled does not create a triable issue
regarding whether they possessed unlawful animus
FEHA provides that the term “ ‘[m]ental disability’ ”
includes “[b]eing regarded or treated by the employer . . . as
having, or having had, any mental condition that makes
achievement of a major life activity difficult” and “[b]eing
regarded or treated by the employer . . . as having, or having had,
a mental or psychological disorder or condition that has no
present disabling effect, but that may become a mental disability”
that “limits a major life activity” or “requires special education or
related services.” (See § 12926, subds. (j)(1)–(j)(2), (j)(4)–(j)(5).)
Similarly, the statute provides that “ ‘[p]hysical disability’ ”
includes “[b]eing regarded or treated by the employer . . . as
having, or having had, any physical condition that makes
achievement of a major life activity difficult” and “[b]eing
regarded or treated by the employer . . . as having, or having had,
a disease, disorder, condition, cosmetic disfigurement, anatomical
loss, or health impairment that has no present disabling effect
but may become a physical disability” that “[a]ffects [a] . . . body
14 Bernal does not argue that her FEHA retaliation cause
of action is premised on a reasonable (but mistaken) belief that
Stanovich and Garcia discriminated or retaliated against her in
connection with a disability that they erroneously believed she
possessed. (See also Discussion, part B.3, post [discussing in
greater detail Bernal’s claim that Stanovich and Garcia perceived
her to be disabled].)
28
system” and “[l]imits a major life activity” or “requires special
education or related services.” (See § 12926, subds. (m)(1)–(m)(2),
(m)(4)–(m)(5).)
Bernal argues that because “a trier of fact could find that
Kaiser perceived or regarded . . . Bernal as having a disability,”
she has viable FEHA claims for discrimination and retaliation.
This argument fails because Bernal’s evidence falls short of
establishing a triable issue concerning whether Stanovich or
Garcia took adverse employment actions against her because
(a) they regarded or treated her as disabled or (b) she engaged in
protected activity connected to any disability that Stanovich or
Garcia believed she had.15
“ ‘While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the
employer when the fact of disability is the only reasonable
interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient
to put an employer on notice” ’ ” of a disability under FEHA. (See
Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237,
1248 (Avila).) Indeed, “ ‘[n]ot every illness qualifies as [a]
disability,’ ” and an “employer’s knowledge that [an] employee
‘had taken a substantial amount of leave for medical
appointments’ ” can fall short of demonstrating the employer’s
15 Bernal suggests for the first time in her reply that
Kaiser failed to discharge its “initial burden below to
demonstrate” Bernal could not establish a triable issue that “she
was perceived as disabled by . . . Stanovich and . . . Garcia.”
She waives any such argument by failing to raise it timely.
(Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at
p. 1292, fn. 6.)
29
awareness of a disability. (See id. at p. 1249.) Applying these
principles to the case before it, the Avila court concluded that a
form from a health care provider indicating an employee had
been hospitalized for several days for an unspecified condition
“was not sufficient to put [the employer] on notice that [the
employee] was suffering from a qualifying disability.” (See id. at
pp. 1247–1250.)16
Bernal maintains a reasonable jury could find that Garcia
perceived Bernal “as suffering from some sort of disability”
because he knew she was absent from work on medical leave at
certain points in time. Specifically, Bernal claims that although
Garcia initially believed that the medical leave of absence Bernal
took immediately prior to her return to LAMC was not “ ‘official’
[since] he required . . . Bernal to report to work on June 1, 2016
(in the midst of her medical leave)[,] . . . . the Department of
Human Resources sent . . . Bernal back home and she did not
return to work until her leave was completed.” Bernal further
contends “Garcia was aware that from August 10, 2016 through
September 21, 2016, . . . Bernal took a protected leave of absence
that indicated she was ‘on stress leave w/ psych.’ ”
Additionally, Bernal asserts that “[a] jury could also
reasonably conclude that . . . Garcia and/or . . . Stanovich
considered . . . Bernal’s ‘fuzzy’ demeanor and alleged ‘slurred
16 Although Avila addressed whether an employer
had knowledge of an actual disability (see Avila, supra,
165 Cal.App.4th at p. 1243), we find that decision instructive
because “whether an employer perceives a plaintiff as disabled
and whether an employer is aware of a plaintiff’s disability are
similar” questions. (See Cornell v. Berkeley Tennis Club (2017)
18 Cal.App.5th 908, 938–939.)
30
speech’ during their June 2016 meeting to be the result of a
physical disability, which also influenced their decision to
subject . . . Bernal to a premature re-validation.”
We find unavailing Bernal’s reliance on Garcia’s knowledge
that she took medical leave. Given the dearth of information
Bernal claims was available to Garcia regarding her medical
leave, Garcia simply could have concluded that Bernal abstained
from working to cope with stress. Bernal does not point to any
evidence Garcia believed that the stress Bernal endured was so
severe that it was indicative of a mental condition or disorder.
(See § 12926, subds. (j)(1)–(j)(2), (j)(4)–(j)(5).) Because not every
ailment causing an employee to miss work constitutes a disability
under FEHA (see Avila, supra, 165 Cal.App.4th at pp. 1248–
1250), Garcia’s awareness of Bernal’s stress-induced medical
leave does not give rise to a triable issue regarding whether he
perceived her to be disabled.17
Stanovich’s and Garcia’s belief that Bernal had a “ ‘fuzzy’
demeanor” and “ ‘slurred speech’ ” at the June 27, 2016 meeting
does not give rise to a reasonable inference that they regarded or
treated her as having a physical disability. This behavior could
be attributed to any number of causes that do not constitute a
physical condition, disease, disorder, or health impairment that
has the potential to limit a major life activity or require special
education or related services. (See § 12926, subds. (m)(1)–(m)(2),
17 Bernal also intimates for the first time in her reply that
Stanovich believed Bernal was disabled because Stanovich told a
nurse assigned to conduct one of Bernal’s validations that Bernal
had “recently completed a lengthy medical leave.” Bernal has
waived this argument. (Habitat & Watershed Caretakers, supra,
213 Cal.App.4th at p. 1292, fn. 6.)
31
(m)(4)–(m)(5).) For instance, Stanovich stated in her deposition
that she suspected Bernal was “under the influence of
something . . . .” Further, Garcia testified Bernal told him that
her speech was slurred because she had undergone some sort of
surgery.
Thus, Bernal identified evidence establishing nothing more
than that Stanovich and Garcia thought she may have suffered
from one or more “ ‘unspecified’ ” impairments. (See Avila, supra,
165 Cal.App.4th at p. 1248.) Because a jury would have to resort
to “ ‘speculation and conjecture’ ” to find that Stanovich or Garcia
in fact regarded or treated Bernal as having a mental or physical
disability, she has failed to establish a triable issue on that point.
(See Doe v. Lawndale Elementary School Dist. (2021)
72 Cal.App.5th 113, 143 [“ ‘[S]peculative inferences do not raise a
triable issue of fact[.]’ ”].)
Bernal further claims that Stanovich stated in her
deposition that “ ‘[she] was told [Bernal] had some type of
physical illness or something that was precluding her from being
able to work.’ ” Bernal further asserts that Stanovich
“acknowledged that her ‘understanding’ was that . . . Bernal’s
leave of absence ‘was based on physical disability.’ ” The excerpts
of the deposition transcript Bernal cites for these propositions
show Stanovich testified that, in connection with the last medical
leave Bernal took during her tenure at Kaiser (i.e., leave she took
beginning on November 19, 2016), a Kaiser employee conveyed
the aforesaid information to Stanovich regarding the nature of
Bernal’s leave.
We find Bernal’s reliance on this aspect of Stanovich’s
deposition transcript perplexing. As far as we can discern,
Bernal’s theory of the case is that Stanovich and Garcia had
32
decided to terminate Bernal’s employment because she failed the
second and third competency validations. Because Bernal failed
these validations before she took medical leave on
November 19, 2016, Stanovich’s later-acquired belief that Bernal
had a physical disability has no apparent relevance to her
discrimination and retaliation claims. (See Avila, supra,
165 Cal.App.4th at p. 1251 [“Evidence that a decision maker
learned of a[n employee’s] disability after deciding to take
adverse employment action is not probative of whether the
decision maker was aware of the [employee’s] disability when he
or she made the decision. Such evidence is irrelevant to
determining whether the decision maker acted from a
discriminatory animus.”]; Arteaga v. Brink’s, Inc. (2008)
163 Cal.App.4th 327, 354 [“ ‘Employers are sometimes forced to
remove employees who are performing poorly . . . . Precedent
does not prevent [an employer] from removing such an employee
simply because the employee [recently] engaged in a protected
work activity.’ ”].)
Furthermore, Stanovich attested in her declaration that
shortly before she terminated Bernal, she “doubt[ed] the
legitimacy of . . . Bernal’s medical leave” from Kaiser because
Stanovich “learned that . . . Bernal continued to work for a PICC
registry service while she was on medical leave.” As we noted at
the beginning of Discussion, part B, Bernal does not challenge
the trial court’s conclusion that she did in fact perform
unauthorized work for a different employer while she was on
leave. Under these circumstances, no rational trier of fact could
have concluded that when Stanovich terminated Bernal on
February 17, 2017, Stanovich actually believed Bernal suffered
33
from a “physical disability” “that was precluding her from being
able to work.”
Given these facts, we are unable to ascertain how
Stanovich’s belatedly formed belief that Bernal was physically
disabled is relevant to whether Stanovich or Garcia subjected her
to an adverse employment action with discriminatory or
retaliatory animus. Bernal’s failure to elaborate further on that
point is fatal to her reliance on Stanovich’s deposition testimony.
(See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270,
277 [“ ‘[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ [Citation.] ‘We are not
obliged to make other arguments for [appellant] [citation], nor
are we obliged to speculate about which issues counsel intend to
raise[,]’ ” italics added].)
In sum, Bernal has failed to discharge her burden of
affirmatively showing the trial court committed reversible error
in disposing of her FEHA discrimination and retaliation claims.
(Los Angeles Unified School Dist., supra, 57 Cal.App.5th at
p. 492; Estate of Sapp, supra, 36 Cal.App.5th at p. 104.)
C. Bernal Fails to Demonstrate Error as to Her Causes
of Action for Failure to Provide Reasonable
Accommodation and Failure to Participate in the
Interactive Process
Section 12940, subdivision (m)(1) prohibits an employer
from “fail[ing] to make reasonable accommodation for the known
physical or mental disability of an . . . employee.” (§ 12940,
subd. (m)(1).) Similarly, subdivision (n) obligates an employer to
“engage in a timely, good faith, interactive process with the
employee . . . to determine effective reasonable accommodations,
34
if any, in response to a request for reasonable accommodation by
an employee . . . with a known physical or mental disability or
known medical condition.” (Id., subd. (n).)
During the proceedings below, Kaiser argued Bernal’s
FEHA causes of action for failure to provide reasonable
accommodation and participate in the interactive process failed
because, among other things, Bernal did not suffer a qualifying
disability under FEHA and she was not denied reasonable
accommodation. Kaiser reasserts this position in its appellate
brief.
Regarding her failure to accommodate claim, Bernal argues
she “requested a limited accommodation in the form of a leave of
absence through April 14, 2017, arising from her
depression/stress as a result of her supervisor’s retaliatory,
harassing, and discriminatory conduct.” She avers that “Kaiser
failed to accommodate her by interrupting her leave to attempt to
discipline her, and ultimately by requiring her to respond to . . .
Stanovich’s February 10, 2017 letter or else face termination.”
She further contends that “Kaiser did not attempt to present any
evidence that waiting until . . . Bernal’s unpaid medical leave
ended to contact her and issue discipline would have caused it
undue hardship.”
It thus appears that Bernal’s failure to accommodate claim
is premised on her contention that Stanovich’s and Garcia’s
behavior caused her to suffer a stress-related disability. Because
Bernal waived that argument (see Discussion, part B.2, ante), she
cannot establish an essential element of this cause of action.18
18 (See Wilson v. County of Orange (2009) 169 Cal.App.4th
1185, 1192 [“The essential elements of a failure to accommodate
35
Stanovich’s belief that Bernal took her final stretch of medical
leave because of some sort of unspecified physical disability does
not rescue this cause of action either.19 (See Discussion, part B.3,
ante.) This is because Bernal does not argue—let alone identify
evidence showing—that Stanovich should have been aware she
needed to accommodate this perceived unspecified physical
disability by refraining from contacting Bernal during her
leave.20
With respect to her interactive process cause of action,
Bernal complains “LAMC created an unprecedented multi-
validation procedure to question and undermine . . . Bernal’s
competency and jeopardize her career prospects.” She claims
Kaiser did not “interact [with her] in good faith” because it
“did not attempt to accommodate her” by explaining “why she
claim are[, inter alia,] the plaintiff has a disability covered by the
FEHA.”].)
19 Bernal argues for the first time in her reply there is a
triable issue regarding whether Stanovich believed Bernal was
“mentally disabled” at that time. (Italics added.) Bernal waived
this contention. (Habitat & Watershed Caretakers, supra,
213 Cal.App.4th at p. 1292, fn. 6.) In any event, the excerpts
from Stanovich’s deposition that Bernal cites in support of this
argument do not indicate that Stanovich believed Bernal had a
mental disability, but instead suggest Stanovich was informed
that Bernal possessed a physical disability.
20 (See King v. United Parcel Service, Inc. (2007)
152 Cal.App.4th 426, 443 [“An employee cannot demand
clairvoyance of his employer. [Citation.] ‘ “[T]he employee can’t
expect the employer to read his mind and know he secretly
wanted a particular accommodation and sue the employer for not
providing it.” ’ ”].)
36
was being treated as she was” or “hav[ing] the BARD company
re-validate her . . . .”
It is not altogether clear that Bernal’s discussions with
Stanovich and Garcia concerning the competency validations
constitute “request[s] for reasonable accommodation” triggering a
duty to “engage in a timely, good faith, interactive process with”
Bernal for the purposes of FEHA. (See § 12940, subd. (n);
see also Soria v. Univision Radio Los Angeles, Inc. (2016)
5 Cal.App.5th 570, 600 [holding that as a general rule, “the
employee must initiate the [interactive] process” by requesting a
reasonable accommodation].) In any case, no reasonable jury
could conclude that, at the time Stanovich and Garcia required
Bernal to undergo the competency validations, she had an actual
disability or they regarded or treated her as having a disability.
(See Discussion, parts B.2–B.3, ante; Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 61 & fn. 21 [noting that FEHA
“obligate[s an employer] to engage in a timely, good faith
discussion with an . . . employee whom it knows is disabled,” and
that this obligation encompasses an employee whom the
employer mistakenly believes is disabled, fn. omitted, italics
added].)
We thus conclude that Bernal’s FEHA causes of action for
failure to accommodate and failure to participate in the
interactive process fail as a matter of law.
D. Bernal Abandoned Her CFRA Causes of Action
In her opening brief, Bernal acknowledges that she
“pursued claims under the California Family Rights Act” during
the proceedings below, but states that she “does not pursue
[them] on appeal.” Consequently, she has abandoned her CFRA
causes of action. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466,
37
fn. 6 [“Although our review of a summary judgment is de novo,
it is limited to issues which have been adequately raised and
supported in [an appellant’s] brief. [Citations.] Issues not raised
in an appellant’s brief are deemed waived or abandoned.”].)
E. Bernal’s FEHA Failure to Prevent Cause of Action
and Her Wrongful Termination in Violation of Public
Policy Claim Fail Because They Are Predicated on
Her Other Causes of Action
FEHA forbids employers from “fail[ing] to take all
reasonable steps necessary to prevent discrimination and
harassment from occurring.” (§ 12940, subd. (k).) Additionally,
“ ‘[i]t is settled that an employer’s discharge of an employee in
violation of a fundamental public policy embodied in a
constitutional or statutory provision gives rise to a tort action.’
[Citation.]” (Prue v. Brady Co./San Diego, Inc. (2015)
242 Cal.App.4th 1367, 1377.)
Bernal argues that her FEHA failure to prevent claim
should be reinstated because her discrimination and retaliation
claims ought to have survived summary judgment. Because we
reject Bernal’s contention that her discrimination and retaliation
claims are viable (see Discussion part B, ante), we do not disturb
the trial court’s ruling on her failure to prevent cause of action.
Furthermore, the trial court granted Kaiser’s motion as to
the wrongful termination claim on the ground that because
Bernal’s other causes of action failed, Bernal could not establish
“any constitutional, statutory, or other public policy violations”
giving rise to tort liability. On appeal, Bernal concedes this cause
of action is “derivative” of her other claims. It follows that
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because Bernal has not demonstrated error as to her FEHA or
CFRA claims, her wrongful termination claim also fails.21
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
KELLEY, J.*
21 We have rejected the merits of Bernal’s FEHA claims
arising out of her termination. Thus, Bernal’s wrongful
termination claim would fail even if we agreed with her
contention that she did not have to exhaust administrative
remedies as to that cause of action.
* Judge of the Los Angeles County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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