Shahin v. Kaiser Foundation Health Plan CA2/4 ( 2023 )

Filed 5/1/23 Shahin v. Kaiser Foundation Health Plan CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
SANA SHAHIN,
B307750
Plaintiff and Appellant, (Los Angeles County
v. Super. Ct. No.
19STCV08042)
KAISER FOUNDATION HEALTH
PLAN, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Reversed in part and
remanded with directions.
Stephan Filip, Shahane Arayi Martirosyan; Law Offices of
Alex Gilanians and Alexander Gilanians for Plaintiff and
Appellant.
Horvitz & Levy, Bradley S. Pauley, Scott Dixler; Cozen
O’Connor, Michele Ballard Miller and Nicole Herter Perkin for
Defendants and Respondents.
INTRODUCTION
Sana Shahin appeals from the trial court’s summary
judgment in favor of Southern California Permanente Medical
Group (SCPMG), Kaiser Foundation Hospitals (KFH), Kaiser
Foundation Health Plan, Inc. (KFHP), and The Permanente
Federation LLC (TPF) (collectively, Kaiser) on her action for
various employment disability, discrimination, and retaliation
related causes of action, including several claims under the Fair
Employment and Housing Act (FEHA) (Government Code
§ 12900 et seq.).
The crux of Shahin’s claims is that for over a decade,
Kaiser permitted her to work from home three days a week,
which allowed her to care for her son, who has a disability.
During that time, as evidenced by her performance reviews,
Shahin’s managers felt she was perfectly capable of doing her job
from home, and that she did it well. In 2017, however, Shahin’s
new supervisor decided all managers must be present in the
office five days a week. Shahin pleaded with Kaiser to keep her
telecommuting schedule because she could not work without it.
But Kaiser refused to acquiesce.
Although Shahin may be right that her new manager’s
edict is unfair or unwise, the Legislature has not required an
employer to accommodate an employee who has a desire to work
from home to assist with care for a child with a disability. Thus,
Shahin does not have a viable claim under FEHA, or any other
statute she invokes, for Kaiser’s refusal to permit her to continue
her telecommuting arrangement, and thus to care for her son.
Shahin also alleges Kaiser violated FEHA by failing to
accommodate her own disability and failing to engage in the
interactive process regarding her disability. For the reasons
2
discussed below, we conclude the trial court erred by granting
summary adjudication of those claims. Therefore, summary
adjudication of those claims and entry of summary judgment is
reversed. We affirm summary adjudication in favor of Kaiser on
the balance of Shahin’s claims.
FACTUAL AND PROCEDURAL BACKGROUND
In 2000, Shahin began working for KFHP in Pasadena as a
contract benefits specialist. In 2005, Norair Jemjemian, the Chief
Financial Officer of KFHP, offered Shahin a supervisor role in
the Outside Referrals Department (ORD) of SCPMG in Los
Angeles. Shahin explained she could not commute five days a
week to Los Angeles from her home in San Dimas because she
had a nine-year old son with autism who required regular care.
Jemjemian responded she could telecommute three days a week
to reduce her commuting time and increase the time she could
spend with her son. The Area Medical Director at Los Angeles
Medical Center approved the telecommuting arrangement. Based
on this arrangement, Shahin accepted the new position.
Shahin continued to telecommute for several years, and
Kaiser eventually promoted her to senior manager in 2014.
In 2016, Shahin took a medical leave of absence. When she
returned to work in January 2017, Shahin began reporting
directly to Milena Garabedian. Garabedian, in turn, reported to
SCPMG’s Chief Administrative Officer, Sharon Peters. In or
around April 2017, Garabedian informed Peters that Shahin
telecommuted three days a week so she could care for her son.
Peters explained to Garabedian she did not believe managers
should telecommute because they should be visible in the
workplace each day to respond to staff needs and ensure the
fulfillment of productivity expectations. Based on this belief,
3
Peters instructed Garabedian to tell Shahin she could no longer
telecommute. According to Garabedian, she did not inform
Shahin right away, however, because she sought to determine
whether there was a formal agreement in writing regarding
Shahin’s telecommuting arrangement. By the end of 2017,
Garabedian determined there was no written telecommuting
agreement in Shahin’s file.
Shahin had issues with Garabedian’s “management style
and treatment of [her]” from the day she began reporting to
Garabedian. Shahin felt Garabedian “nitpick[ed]” her, failed to
support her, assigned her “worthless” tasks, criticized her emails,
and used “intimidation tactics” by telling her that Peters was
“pissed” and that Shahin was being investigated for an
unspecified reason. Shahin also thought Garabedian rolled her
eyes, giggled at her, and whispered about her in meetings.
In May 2017, Garabedian gave Shahin her performance
review for 2016. The review ranked Shahin “excellent” in
multiple leadership skills and noted that she “is very eloquent
and provides great customer service to our physicians and
leaders.” Shahin was “okay with” the review, but she disagreed
with some of the ratings marked “successful” rather than
“excellent” because she thought 2016 was her “highest
performing year in [her] entire career at [Kaiser].” She
considered the review “untruthful,” in part because she did not
report to Garabedian in 2016.
Shahin experienced stress and anxiety from her
interactions with Garabedian. In July 2017, Shahin fainted. She
attributed the incident to work-related stress. Shahin informed
Garabedian that she was experiencing stress and seeking
treatment from a cardiologist that required her to wear a heart
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monitor, but Garabedian did not “respond to [Shahin’s] request to
stop putting [her] through that level of pressure.” After the
fainting incident, Kaiser granted Shahin’s requests for days off of
work for medical appointments, and permitted Shahin to work
from home for approximately two-and-a-half weeks while she
wore a heart monitor.
Between August 2017 and May 2018, Shahin continued
having issues with Garabedian based on, among other things,
Garabedian questioning emails Shahin wrote, demanding Shahin
hold her staff accountable for issues unrelated to her staff,
talking down to Shahin through condescending emails and in
person in front of others, not greeting Shahin during work
meetings, assigning rudimentary “busy-work” to Shahin, and
making budget cuts in Shahin’s department but not others.
On May 10, 2018, Garabedian met with Shahin to discuss
Shahin’s performance review for 2017. Garabedian lowered
certain ratings in the performance evaluation and noted she
wanted Shahin to be more strategic and innovative. Shahin felt
“traumatized” because she thought the “whole evaluation [was]
untruthful.” She became upset, told Garabedian she felt tightness
in her chest, and walked out of the meeting. Garabedian had
planned to finally inform Shahin during the May 10, 2018
meeting that she was required to work on-site and could no
longer telecommute three days a week, but she was unable to do
so before Shahin left the meeting.
After she left the performance evaluation meeting, Shahin
sent an email to Human Resources Director, Paul Martin. She
stated she had a “very unpleasant meeting with [Garabedian]
today” and she had “been very reluctant to come forward hoping
that things will get better, but they are only getting worse.” She
5
further stated “[t]he stress [Garabedian] is causing [her] is
impacting [her] mental and emotional wellbeing . . . . Last year
[she] passed out and went [through] extensive treatment with
cardiology for stress . . . due to [Garabedian’s] passive aggressive,
unprofessional, and harassment style . . . .” Shahin’s reasons for
believing Garabedian targeted her are somewhat unclear, but
according to her email: “[Garabedian] has a dual and
unprofessional relationship with one of [Shahin’s] disgruntled
employees and her family, Gabriel Khouri, the step nephew,
which impacted her managerial judgment and caused her to
target [Shahin] from day one, when she stepped into LA.
[Garabedian] came to [Los Angeles Medical Center] with
preconceived and negative perceptions of [Shahin] as a person
with the intent to harass [her] out of her loyalty to Gabriel
Khouri and his family.” In response to the email, Martin replied:
“After reading this complaint I’ve forwarded it onto a member of
our investigative team who will follow up with you on these
concerns. As you know [Kaiser] has several resources to assist in
these matters and you’ll find them equally helpful in reviewing
your issues.”
On May 17, 2018, Garabedian sent Peters and Martin a
draft memorandum informing Shahin that her telecommuting
agreement “will no longer be supported[,]” and effective June 4,
2018, Shahin would be required to work on-site. Garabedian told
Peters and Martin she planned to give the memorandum to
Shahin the following day.
On May 18, 2018, Shahin emailed Martin, Peters, William
Grice (a Senior Vice President), and Dr. Michael Tome (the Area
Medical Director for Los Angeles Medical Center) requesting that
they “step in and not subject [her] to further harassment and
6
distress from [Garabedian].” She stated “[o]ne of the primary
causes of my distress is the fact that [Garabedian] from day [one]
has orchestrated a campaign to tarnish my name . . . .” She
further relayed: “I very much value my job and my career of 18
years with exemplary performance. I have not filed legal action
yet, and frankly do not wish to file legal action hoping for this to
be resolved internally by moving me to a different manager and
hoping that [ ] a member of the executive team will hear my side
of the story and see my documented facts proving that
[Garabedian] has malicious intent for personal and unrelated
matters and resolve this dispute in a fair and honorable manner
without resorting to litigation.”
On May 21, 2018, Shahin met with Garabedian and
Martin. Garabedian gave Shahin the memorandum she had
shown Peters the week before, which explained that Shahin
needed to be “accessible and engaged with [her] team, [her]
colleagues, as well as [her] client groups” and that, to accomplish
this, she must be physically present and have visibility in
operations during business hours. A few days later, Shahin
emailed Garabedian asking her to reconsider, describing
telecommuting as an “accommodation due to [her] disabled son’s
special needs.” Garabedian responded that she lacked
“documentation of any qualifying need to accommodate [Shahin’s]
work schedule.” Thus, Garabedian asked Shahin to provide her
with documentation supporting her request so that she could
speak with Human Resources and “get guidance on next steps.”
Garabedian then forwarded Shahin’s email to Martin. Martin
conducted a review of Shahin’s file and found no documents
indicating Shahin had been allowed to telecommute as an
accommodation for her son’s disability.
7
On May 25, 2018, Shahin took a paid medical leave of
absence. Shahin’s doctor diagnosed her with anxiety and
depression, and placed her off work through October 8, 2018.
On August 7, 2018, while still on leave, Shahin emailed
Martin, Peters, Grice, and Dr. Tome, again explaining that she
has “enough evidence to provide that will demonstrate a ‘conflict
of interest’ with [Garabedian] which impacted her managerial
judgment and caused her to target [Shahin] from day one[.]” She
further reiterated: “[Garabedian] came to [Los Angeles Medical
Center] with preconceived and negative perceptions of me as a
person with the intent to harass me out of her loyalty to her
friend and his family.” She asked for the situation to be resolved
by: (1) reporting to a manager who is not associated with
Garabedian; (2) continuing her telecommuting arrangement; (3)
having a different manager redo her 2016 and 2017 performance
review; and (4) having her good name cleared with Martin,
Peters, Grice, and Dr. Tome.
Martin responded that her complaints have been assigned
to an investigator, but when Shahin went on a medical leave of
absence, she was “informed that this and other matters would all
be held in abeyance until [she was] cleared to return to work.”
Martin further stated: “You also have been requested to provide
documentation related to your work schedule and your inability
to work the hours outlined by the organization. To date, this
requirement has not been met.”
On October 5, 2018, Shahin then sent two documents to
Martin: (1) a letter from Kaiser’s former area medical director Dr.
Donald Marcus dated May 2018, in which Dr. Marcus explained
that in 2005 he had authorized Shahin to telecommute three days
a week; and (2) a 2017 certification form for government-provided
8
in-home supportive services indicating Shahin’s son had “autism
spectrum disorder,” and the physician who completed it answered
“yes” to the question “Is this individual unable to independently
perform one or more activities of daily living (e.g., eating,
bathing, dressing, using the toilet, walking, etc.) or instrumental
activities of daily living (e.g., housekeeping, preparing meals,
shopping for food, etc.)?”
Three days later, Shahin met with Martin to discuss
returning to work. She gave him a note from her doctor releasing
her to return to work, but stating “she will need accommodation”
in the form of “reporting to a neutral party” as opposed to “her
current manager.” Based on the doctor’s note, Martin told Shahin
she could not then return to work but would be placed on a
further medical leave of absence while Kaiser reviewed her
request.
Martin turned over management of Shahin’s medical leave
and accommodation requests to Human Resources manager
Steven Estrada. Estrada concluded the documents Shahin
provided were insufficient to support her accommodation
requests, noting the certification form did not state Shahin
needed to telecommute three days a week, and Shahin’s doctor
failed to describe any specific work restrictions or limitations that
would prevent Shahin from reporting to Garabedian. Estrada
told Shahin that Kaiser needed additional information to support
her accommodation requests. Human Resources case manager
Dee Dee Ruiz requested this additional documentation from
Shahin and advised her that, pending receipt of such
information, Shahin would remain on a medical leave of absence
as a form of reasonable accommodation.
9
Shahin replied to Ruiz that her letter was “very
inappropriate and mean spirited[,]” and asserted that no
additional information should be necessary to support her
requests. She further explained: “My doctor feels that it would be
unhealthy for me to report to [Garabedian]. [¶] . . . [¶] I think we
can discuss options of me reporting to someone else, I keep
bringing this up to no response. Based on what your letter states,
I don’t even know what to ask my doctor to write on the note
other than what he has already written.” Estrada responded a
few days later and repeated that the “information [Kaiser has]
received from [her] thus far does not clarify the limitations of
[her] condition as it relates to [her] ability to perform major life
activities, particularly [her] essential functions of [her] position.”
On December 10, 2018, Shahin provided Estrada with an
additional note from her doctor dated December 7, 2018. The
doctor wrote that he had treated Shahin “for anxiety and
depression secondary to work related stress” since June 2018.
The doctor noted that Shahin’s “psychiatric disturbances arose
first during episodes of supervisory sessions with her
supervisor/manager,” and he repeated his recommendation that
she “resume[ ] her responsibilities at work with the
accommodation of a change of supervisor/manager.”
Estrada emailed Shahin, again telling her more
information was necessary, and that she could return to work
immediately if she agreed to work on-site and report to
Garabedian. Estrada proposed meeting in person. Shahin did not
respond, so Estrada followed up in late January 2019, proposing
possible dates for a meeting. Shahin responded by repeating that
she had provided all necessary paperwork and expressing
frustration with the process.
10
On March 8, 2019, Estrada sent a letter to Shahin again
explaining that Kaiser had not received sufficient information to
support her accommodation requests and stating Kaiser needed
“clarification . . . regarding what limitations are affecting
[Shahin’s] ability to perform the essential functions of [Shahin’s]
position, which would include reporting to [her] current
manager.” Without any explanation, other than the statement
that “there are not multiple managers overseeing [Shahin’s]
work,” Estrada again stated “reporting to the manager in charge
of this area is an essential function of [her] job.” Estrada advised
Shahin that her employment may be subject to termination (but
eligible for rehire) if she failed to provide the requested
information or return to work and perform all essential functions
of her position.
In March 2019, while still on leave, Shahin filed this
lawsuit against Kaiser. The complaint asserts six causes of
action: (1) violation of FEHA; (2) intentional infliction of
emotional distress; (3) retaliation in violation of the California
Family Rights Act (CFRA); (4) violation of Labor Code section
1102.5; (5) violation of Labor Code sections 226, 432, and 1198.5;
and (6) wrongful termination in violation of public policy.
Kaiser moved for summary judgment or, alternatively,
summary adjudication. The trial court granted Kaiser’s motion
for summary judgment, and entered judgment in its favor.1
1 In its summary judgment ruling, the trial court noted
Shahin abandoned her claim for intentional infliction of
emotional distress and wrongful termination in violation of public
policy by failing to defend them in opposition to Kaiser’s motion.
The court also concluded Shahin’s claim based on Kaiser’s alleged
11
Shahin timely appealed from the judgment.
DISCUSSION
I. Standard of Review and Legal Standards
“On appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except
that to which objections have been made and sustained.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) A
defendant moving for summary judgment must show “that one or
more elements of the cause of action . . . cannot be established, or
that there is a complete defense to the cause of action.” (§ 437c,
subd. (p)(2).) “[W]e must view the evidence in a light favorable to
plaintiff as the losing party [citation], liberally construing [his or]
her evidentiary submission while strictly scrutinizing defendants’
own showing, and resolving any evidentiary doubts or
ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 768.) We accept as true both the facts
shown by the losing party’s evidence and reasonable inferences
from that evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 856.) “We must affirm a summary judgment if it is
correct on any of the grounds asserted in the trial court,
failure to provide her personnel and payroll records (fifth cause of
action) was untimely. Shahin does not address these rulings in
her opening brief and therefore, forfeits these issues on appeal.
(Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-
1346, fn. 6 [“[A]n appellant’s failure to raise an issue in its
opening brief [forfeits] it on appeal”].)
12
regardless of the trial court’s stated reasons.” (Grebing v. 24 Hour
Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)
Summary judgment is appropriate only when “all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (§ 437c, subd. (c).) A triable issue of material
fact exists if the evidence and inferences therefrom would allow a
reasonable juror to find the underlying fact in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at pp. 850, 856.)
An employer may meet its initial burden in moving for
summary judgment or adjudication of an employment
discrimination claim by presenting evidence that one or more
elements of the plaintiff’s prima facie case is lacking, or the
employer acted for a legitimate, nondiscriminatory reason.
(Zamora v. Security Industrial Specialists, Inc. (2021) 71
Cal.App.5th 1, 31; Husman v. Toyota Motor Credit Corp. (2017)
12 Cal.App.5th 1168, 1181; Featherstone v. Southern California
Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1158
(Featherstone).) The elements of a prima facie case generally
include “evidence that (1) [plaintiff] was a member of a protected
class, (2) he or she was qualified for the position he [or she]
sought or was performing competently in the position he [or she]
held, (3) he [or she] suffered an adverse employment action, such
as termination, demotion, or denial of an available job, and (4)
some other circumstance suggests discriminatory motive.” (Guz,
supra, 24 Cal.4th at p. 355.) A legitimate, nondiscriminatory
reason is one that is unrelated to the prohibited bias and, if true,
would preclude a finding of discrimination or retaliation. (Id. at
p. 358.) “[I]f nondiscriminatory, [the employer’s] true reasons
13
need not necessarily have been wise or correct. [Citations.] While
the objective soundness of an employer’s proffered reasons
supports their credibility . . ., the ultimate issue is simply
whether the employer acted with a motive to discriminate
illegally.” (Ibid., italics omitted.)
If the employer satisfies its initial burden, the burden
shifts to the plaintiff to present evidence creating a triable issue
of fact showing the employer’s stated reason was a pretext for
unlawful animus. (Husman v. Toyota Motor Credit Corp., supra,
12 Cal.App.5th at p. 1182; Featherstone, supra, 10 Cal.App.5th at
pp. 1158-1159.) The plaintiff’s evidence must be sufficient to
support a reasonable inference that discrimination was a
substantial motivating factor in the decision. (Harris v. City of
Santa Monica (2013) 56 Cal.4th 203, 232; Guz, supra, 24 Cal.4th
at pp. 353, 357.) Whether judgment as a matter of law is
appropriate will depend on a number of factors, including the
strength of the plaintiff’s prima facie case, the probative value of
the proof that the employer’s explanation is false, and any other
evidence that supports the employer’s case. (Guz, supra, 24
Cal.4th at p. 362.)
II. First Cause of Action for Violation of FEHA
In a single cause of action for violation of FEHA, the
complaint alleges: discrimination, based on Shahin’s own
disability; associational disability discrimination, based on her
son’s disability; retaliation; and a failure to take appropriate
corrective actions to stop future discrimination and retaliation
and instead, condoning the conduct. The complaint further
references, under the heading “FACTS APPLICABLE TO ALL
CAUSES OF ACTION,” alleged failures to accommodate Shahin
and a failure to “engage[ ] in any form of interactive process
14
with Shahin.” We therefore construe Shahin’s cause of action for
violation of FEHA to encompass claims for: (1) disability
discrimination and associational disability discrimination; (2)
retaliation; (3) failure to prevent discrimination and retaliation;
(4) failure to reasonably accommodate; and (5) failure to engage
in the interactive process. We address each claim in turn.
A. Shahin Failed to Establish a Prima Facie Case
of Associational Disability Discrimination
Based on Her Son’s Disability or Disability
Discrimination Based on Her Own Disability
“A prima facie case of disability discrimination under
FEHA requires a showing that (1) the plaintiff suffered from a
disability, (2) the plaintiff was otherwise qualified to do his or her
job, with or without reasonable accommodation, and (3) the
plaintiff was subjected to adverse employment action because of
the disability. [Citations.] Adapting this framework to the
associational discrimination context, the “disability” from which
the plaintiff suffers is his or her association with a disabled
person. Respecting the third element, the disability must be a
substantial factor motivating the employer’s adverse employment
action.” (Castro-Ramirez v. Dependable Highway Express, Inc.
(2016) 2 Cal.App.5th 1028, 1037 (Castro-Ramirez).)
The trial court found Kaiser met its initial burden to
show Shahin could not establish a prima facie case of disability
discrimination or associational discrimination because: (1)
Shahin could not show she suffered any adverse action due to
either a disability she suffered or from the disability of her
son; and (2) Shahin “failed to come forth with sufficient
evidence that discrimination was a substantial motivating
factor” in revoking Shahin’s telecommuting arrangement or
15
being placed on medical leave. Even if Shahin could establish
a prima facie case, the trial court concluded Kaiser presented
evidence of a legitimate, nondiscriminatory reason for revoking
the telecommuting arrangement, and Shahin’s evidence “does
not rise to the level of pretext needed to find a triable issue of
fact . . . .” For the reasons discussed below, we conclude (contrary
to the trial court) that, based on the facts of this case, revocation
of Shahin’s telecommuting arrangement constituted an adverse
action. We agree with the trial court, however, that Kaiser met
its burden of showing Shahin could not establish the disability
(either Shahin’s own disability or her association with her
disabled son) was a substantial factor motivating Kaiser’s
decision to revoke the telecommuting arrangement. Shahin,
therefore, cannot establish a prima face case of discrimination.
“[A]lthough an adverse employment action must materially
affect the terms, conditions, or privileges of employment to be
actionable, the determination of whether a particular action or
course of conduct rises to the level of actionable conduct should
take into account the unique circumstances of the affected
employee as well as the workplace context of the claim.”
(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052, fn.
omitted (Yanowitz).) As discussed above, Shahin originally
declined the offer for a new role at the company which would
increase her commute time significantly because she needed to
care for her then nine-year-old son with autism. The medical
director at Los Angeles Medical Center, however, approved a
telecommuting arrangement in which she would work from home
three days a week. Based on this arrangement, Shahin accepted
the new position. Thus, based on the “unique circumstances” of
this case demonstrating Shahin accepted the position on the
16
premise that she would work from home three days a week to
care for her son, we conclude revocation of such an arrangement
constitutes an adverse employment action.
We now turn to whether Shahin can establish the third
element of a prima facie case of discrimination, i.e., that either
her association with her disabled son, or her own disability
(stress and anxiety allegedly caused by her supervisor’s
behavior), motivated Kaiser’s revocation of her telecommuting
arrangement. We conclude, as a matter of law, she cannot.
Although not an exhaustive list, there are three types of
situations that generally evidence a motive for associational
disability discrimination: (1) where the associate’s disability may
cost the employer money (expense); (2) where the employer may
fear the employee will become ill from associating with a disabled
person (disability by association); or (3) where the employer
perceives the employee is somewhat inattentive at work due to
the distraction of caring for a disabled associate, though not to
the point of needing a schedule accommodation (distraction). (See
Castro-Ramirez, supra, 2 Cal.App.5th at pp. 1041-1042.) Shahin
presents no evidence of any of these circumstances, or any other
circumstances suggesting a motive to revoke her telecommuting
arrangement because of her son’s disability.
Shahin relies on the following evidence in support of her
associational discrimination claim: (1) Shahin was permitted to
telecommute for 14 years, but this changed when Garabedian
became her supervisor; (2) unlike all of Shahin’s other
supervisors, past and concurrent, Garabedian had an issue with
Shahin from the moment she met her and learned that she
telecommuted three days of the week to take care of her autistic
child; and (3) on April 9, 2018, Shahin told Garabedian that she
17
was at the hospital for her son and was going to miss a meeting
with Garabedian. She contends a reasonable inference from these
facts is that Garabedian wanted to avoid the inconvenience and
distraction Shahin’s need to care for her disabled son posed to
Garabedian and by revoking her telecommuting arrangement,
Garabedian knew Shahin would no longer be able to work for
Kaiser. We are unpersuaded.
First, Kaiser submitted evidence demonstrating it was
Peters’s decision—not Garabedian’s—to revoke the
telecommuting arrangement. Second, even assuming it was
Garabedian’s decision, in Shahin’s own words from her emails in
2018 to Kaiser management, Garabedian targeted and harassed
her from “day [one]” and had a malicious intent because of
“personal and unrelated matters” involving a disgruntled
employee. According to Shahin, Garabedian “out of her loyalty to
[the disgruntled employee], did not support [Shahin] as
[Shahin’s] manager . . . .” Shahin also testified at her deposition
that she does not know why the decision was made to revoke her
telecommuting arrangement and, in her view, Garabedian no
longer permitted Shahin to telecommute because “[Garabedian]
herself could not work from home.”2 On this record, even viewing
the evidence in light favorable to Shahin and indulging the
reasonable inferences in her favor, as we must, Garabedian
“targeted” Shahin and revoked her telecommuting arrangement
based on reasons wholly unrelated to Shahin’s association with
her disabled son.
2 Peters, Garabedian’s supervisor, did not permit Garabedian
to telecommute.
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Shahin’s reliance on Castro-Ramirez, supra, 2 Cal.App.5th
1028 is misplaced. There, an employee needed to administer daily
dialysis to his son, and for years the employee’s supervisors
scheduled his shifts to begin in the morning to enable him to do
so. (Id. at p. 1031.) The employee sued his employer after a new
supervisor changed the employee’s schedule and ultimately fired
him for refusing to work a shift that did not allow him to be home
in time. (Id. at pp. 1032.) The evidence demonstrated the
supervisor changed the employee’s shift even though eight other
shifts well before noon were available, and even though the
employer’s customer had specifically requested that the
employee—the customer’s regular driver—do its morning
deliveries. (Id. at p. 1042-1043.) There was no apparent reason
why the supervisor could not have scheduled the employee for
one of these earlier shifts. (Id. at p. 1043) And, the explanation
the supervisor proffered for not assigning the employee the 7:00
a.m. shift was false. (Ibid.) The supervisor told the employee the
customer was unhappy with his work and did not want him
making the customer’s deliveries; in fact, the customer’s feedback
was quite the opposite, and the employee never had any
performance issues. (Ibid.) The Court of Appeal held there were
triable issues of fact regarding discriminatory motive under those
circumstances, reasoning that a rational jury could conclude the
supervisor engineered a situation that would give him a reason to
terminate the employee to avoid the inconvenience of
accommodating the employee’s needs.3 (Id. at pp. 1043-1044.)
3 We note the dissent in Castro-Ramirez criticized the
majority’s conclusion that these facts sufficed to show a
discriminatory motive. In the dissent’s view, FEHA does not
19
The facts here are different. Unlike in Castro-Ramirez,
here, as discussed further below, Kaiser had a valid business
reason for changing Shahin’s telecommuting arrangement—
Peters, in her business judgment, believed telecommuting was
incompatible with Shahin’s managerial responsibilities. The
impose a requirement that an employer reasonably accommodate
the scheduling needs of a nondisabled employee caring for a
family member with a disability. Thus, according to the dissent, a
failure to make such an accommodation – which, in essence, was
what the dissent found the evidence that the employer’s changes
to the employee’s schedule to be – could not, by itself, suffice as
evidence of discriminatory motive. (Castro-Ramirez, supra, 2
Cal.App.5th at 1059-1060 (dis. opn. of Grimes, J.) [noting that the
majority opinion “necessarily assumes that the employer had an
obligation to accommodate plaintiff’s desired schedule” and that
“[t]here is no such obligation under . . . FEHA”].)
For the reasons we explain below in our discussion of
reasonable accommodation in section II.D.i, we agree with
the Castro-Ramirez dissent that FEHA does not require an
employer to reasonably accommodate a nondisabled employee
solely because the nondisabled employee is charged with caring
for a disabled family member. We need not, however, and do not
address the impact of that conclusion for a finding of
discriminatory motive. We do not take sides on that point as
between the Castro-Ramirez majority and dissent. Here, even
assuming arguendo the Castro-Ramirez majority was correct that
discriminatory motive can sometimes be shown by an employer’s
failure to reschedule the work of a non-disabled employee who
must care for a disabled family member, Shahin failed to raise a
triable issue regarding whether Kaiser changed her
telecommuting arrangement because of the inconvenience of
scheduling around her son’s disability. Thus, from any angle,
Shahin could not show discriminatory motive.
20
record contains no evidence this proffered business reason was
fabricated (although it is inconsistent with Shahin’s satisfactory
performance evaluations over the preceding decade). Moreover,
Shahin’s own complaint and deposition testimony indicate her
belief that Garabedian revoked her telecommuting arrangement
based on a personal reason outside of work and because
Garabedian, herself, was not permitted to telecommute. No
similar facts were present in Castro-Ramirez. We therefore
decline to find discriminatory motive based on Castro-Ramirez.
We likewise conclude Shahin cannot demonstrate she was
subjected to an adverse employment action because of her own
disability. Shahin makes two points: (1) in July 2017, Shahin told
Garabedian that she had a syncopal episode from work stress and
was wearing a heart monitor and in response, “Garabedian did
nothing but continue to scrutinize Shahin’s work”; and (2) once
Shahin escalated her complaints in May 2018, the leadership
placed her on an unpaid medical leave. Neither point
demonstrates Shahin’s disability (stress and anxiety) was a factor
motivating an adverse employment action, let alone a substantial
factor.
First, that Garabedian “continued to scrutinize [Shahin’s]
work” does not demonstrate discriminatory motive; in fact, it
shows Garabedian treated Shahin the same even before Shahin
claims she suffered from a disability. Second, contrary to
Shahin’s contention, her leave was not involuntary. Shahin
initiated the medical leave in May 2018. Because Shahin’s doctor
said she could not return to work under Garabedian’s
supervision, however, Kaiser kept her on leave while it sought
more information about the nature of her purported disability.
And, Kaiser submitted evidence that the medical leave was paid
21
for over a year: Martin declared that based on his review of
Shahin’s employment records, Kaiser continued paying Shahin
for over a year while she was on leave (until November 25, 2019).
Shahin provided no evidence to the contrary.
Moreover, even assuming Shahin established a prima facie
case of disability discrimination, Kaiser had legitimate business
reasons for its actions. Legitimate business reasons “in this
context are reasons that are facially unrelated to prohibited bias,
and which, if true, would thus preclude a finding of
discrimination.” (Guz, supra, 24 Cal.4th at p. 358, original
italics.) Under Kaiser’s telecommuting policy, managers had
discretion to “terminate a telecommuting arrangement at any
time, with or without cause.” Peters declared: “In discussions I
had with Garabedian, I learned that Shahin had a practice of
regularly telecommuting from home three days per week. I
informed Garabedian that in my role as [Chief Administrative
Officer], I did not support telecommuting for my managers, as I
did not consider it to be effective, and that this extended not only
to my direct reports, such as Garabedian, but to other managers
reporting up to me, such as Shahin. As [Chief Administrative
Officer], I did not support telecommuting for managers because I
believe that managers who oversee a team of employees must be
visible and in their department each day to respond to staff’s
needs and ensure productivity expectations are met. Based on
these beliefs, I instructed Garabedian that she would need to
instruct Shahin that she could no longer telecommute.”
Because Peters’s reason for not permitting Shahin to
telecommute is unrelated to discriminatory bias, the burden
shifts to Shahin to demonstrate a triable issue of fact with
“‘“substantial evidence that the employer’s stated reasons were
22
untrue or pretextual, or that the employer acted with
discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination
or other unlawful action.”’” (Ortiz v. Dameron Hospital Assn.
(2019) 37 Cal.App.5th 568, 578, italics omitted.)
Shahin argues pretext can be demonstrated from the
following evidence: (1) Peters assumed her role in January 2015,
but did not revoke Shahin’s telecommuting arrangement until
2018; (2) purported inconsistencies in Peters’s deposition
testimony regarding when she learned Shahin had a disabled
son; (3) Ronald Eleccion, another Kaiser employee, was permitted
to telecommute; (4) Dan McReynolds (to whom Shahin had
reported indirectly) allows his reports to telecommute; and (5)
Garabedian’s deposition testimony purportedly shows it was her
decision to revoke the telecommuting arrangement, not Peters’s.
We are not persuaded Shahin has met her burden to produce
substantial evidence of pretext to defeat summary judgment.
First, as soon as Peters learned from Garabedian in April
2017 that Shahin telecommuted three days a week, Peters
instructed Garabedian to tell Shahin she could no longer
telecommute. The delay between when Peters first instructed
Garabedian to require Shahin to work on-site and when
Garabedian implemented that decision does not constitute
substantial evidence that Peters’s reason for revoking the
telecommuting arrangement was pretextual. (See Martin v.
Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1735
[“[T]o avert summary judgment, [the employee] must produce
‘substantial responsive evidence’ that the employer’s showing was
untrue or pretextual. [Citation.] For this purpose, speculation
cannot be regarded as substantial responsive evidence”].)
23
Second, even assuming Peters knew at all relevant times
that Shahin had a disabled son, there is no evidence Peters
denied the telecommuting request due to bias against Shahin or
her son.
Third, it is irrelevant whether another Kaiser employee
was permitted to telecommute, and whether Peters knew that the
employee’s telecommuting was authorized. Peters did not
supervise Eleccion, and Kaiser’s telecommuting policy gave each
supervisor discretion whether to allow telecommuting by
subordinates.
Fourth, whether McReynolds permits his other reports to
telecommute is irrelevant to whether Peters’s proffered reason for
not permitting Shahin to telecommute was untrue or pretextual.
Fifth, contrary to Shahin’s contention, Garabedian’s
deposition testimony does not demonstrate it was her decision to
require Shahin to work on-site. When Garabedian testified that
she looked at the decision to require Shahin to work on-site from
a “business perspective,” she did not state it was her decision to
make. In any event, as discussed above, even if it was
Garabedian’s decision, there is insufficient evidence from which a
trier of fact can infer that Garabedian revoked the telecommuting
arrangement because of Shahin’s disability or her son’s disability.
Finally, Shahin argues that her request in 2018 to report to
another manager could have been granted, and she provided
sufficient documentation in support of her accommodation
requests to report to another manager and telecommute three
days a week. These arguments focus on whether Kaiser failed to
provide a reasonable accommodation, which we will address
below. They do not, however, demonstrate discriminatory motive
or pretext.
24
Accordingly, we conclude Shahin failed to produce evidence
from which a reasonable trier of fact could infer Kaiser
discriminated against her based on her son’s disability, or her
own disability, when it revoked her telecommuting arrangement
and extended her medical leave of absence.
B. Shahin Cannot Establish a Prima Facie Case
of Retaliation and There is No Evidence
Kaiser’s Actions Were a Pretext for
Retaliation
FEHA retaliation claims are governed by the McDonnell
Douglas burden-shifting analysis. (Yanowitz, supra, 36 Cal.4th at
p. 1042.) “[I]n order to establish a prima facie case of retaliation
under [ ] 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, and (3) a causal link existed between
the protected activity and the employer’s action.” (Ibid.)
Shahin first argues the “proximity in time between when
Shahin requested to take a day off instead of meeting with
Garabedian for her [one-on-one] and when Garabedian decided to
revoke Shahin’s telecommuting accommodation satisfies this
burden for causal connection.” But Kaiser submitted evidence
that the decision to require Shahin to work on-site was made
before Shahin missed the meeting. Shahin, therefore, cannot
satisfy the causal link element of a prima facie case of retaliation.
Next, Shahin argues it can be inferred Kaiser’s actions
were retaliatory because she submitted multiple written and
verbal requests between May and December 2018 to Garabedian,
Human Resources, and Kaiser management, “pleading to
continue her 14-year-old accommodation to telecommute” and
“[i]n response, Kaiser rejected her request and placed Shahin on
25
an indefinite, unpaid ‘medical leave.’” But even assuming an
involuntary unpaid medical leave constitutes an adverse action,
the record reflects that is not what happened here. As discussed
above, Shahin initially requested leave in May 2018, and
submitted a doctor’s note stating she could return in October if
Kaiser reassigned her to a new manager and reinstated her
telecommuting arrangement. In response to the accommodation
request, Kaiser kept her on paid medical leave as an
accommodation to her while it sought more information about the
nature of her purported disability.
In any event, even assuming Shahin had made out a prima
facie case of retaliation, if the employer offers a legitimate,
nonretaliatory reason for the adverse employment action, the
presumption of retaliation vanishes and the burden shifts back to
the employee to prove intentional retaliation. (Yanowitz, supra,
36 Cal.4th at p. 1042.) For the reasons discussed above in section
II.A, Kaiser had legitimate reasons for its actions, and there is no
evidence these reasons were a pretext for discrimination or
retaliation.4
4 Shahin also argues that after she complained to HR about
Garabedian’s treatment of her, Peters, Garabedian, and Martin
began referring to Shahin as “Project X.” She offers no evidence,
however, that this term was used in a derogatory manner. Nor
does she argue how the use of the term demonstrates an intent to
retaliate against Shahin because of her complaints. (See King v.
United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433-434
[speculation and subjective beliefs are insufficient to create a
triable issue of fact on the issue of pretext].)
26
C. Shahin’s Claim for Failure to Prevent
Discrimination and Retaliation Fails for the
Same Reasons as Her Claims for
Discrimination and Retaliation
To prevail on a claim for failure to prevent discrimination
or retaliation under FEHA, a plaintiff must show she was subject
to discrimination or retaliation. (Dickson v. Burke Williams, Inc.
(2015) 234 Cal.App.4th 1307, 1314-1315.) Because Shahin’s
claims for discrimination and retaliation fail as a matter of law
(for the reasons discussed above), her claim for failure to prevent
discrimination and retaliation cannot survive summary
judgment.
D. The Trial Court Correctly Held Employers
Have No Duty to Accommodate Employees
Who Associate with Disabled Persons, But
Erred by Granting Summary Adjudication of
Shahin’s Claim for Failure to Accommodate
Her Own Disability
i. Employers have no duty to
accommodate the schedule of an
employee with a disabled relative.
Relying on Castro-Ramirez, supra, 2 Cal.App.5th 1028,
Shahin contends Kaiser had a duty under FEHA to
accommodate her request to telecommute three days a week to
care for her disabled son. The Castro-Ramirez court, however,
expressly declined to decide whether an employer has a duty to
reasonably accommodate employees who associate with
disabled persons. Acknowledging the plaintiff in Castro-
Ramirez abandoned his reasonable accommodation claim, the
court stated: “[W]e do not decide whether FEHA establishes a
separate duty to reasonably accommodate employees who
27
associate with disabled persons.” (Castro-Ramirez, supra, 2
Cal.App.5th at p. 1038.) To the extent the Castro-Ramirez court
nevertheless opined in dicta that FEHA may “reasonably be
interpreted to require accommodation based on the employee’s
association with a physically disabled person” (ibid), we disagree.
As discussed below, unlike the list of protected characteristics
used in some sections of FEHA—a list FEHA expressly defines
as including associational disability—FEHA does not include
associational disability in the definition of any of the language
used in the reasonable accommodation and interactive process
sections.
Under Government Code section 12926, subdivision (o),
association with a disabled person is a protected characteristic.
(Gov. Code, § 12926, subd. (o) [defining protected characteristics
including “‘physical disability, mental disability, [and] medical
condition” to include “a perception that . . . the person is
associated with a person who has, or is perceived to have, any of
those characteristics”].) Thus, section 12926, subdivision
(o) incorporates associational disability into instances where
FEHA includes the list of protected characteristics; for example,
it is incorporated into the code sections governing disability
discrimination. (See Gov. Code, § 12940, subds. (a)-(d) & (j)(1).)
In contrast to FEHA’s provisions regarding discrimination,
the provisions regarding an employer’s duty to accommodate a
disabled employee neither mention association with a disabled
person nor incorporate the list of protected characteristics that
includes association with a disabled person. Government Code
section 12940, subdivision (m)(1), requires employers “to make
reasonable accommodation for the known physical or mental
disability of an applicant or employee.” Government Code section
28
12940, subdivision (n) further requires an employer “to engage in
a timely, good faith, interactive process with [an] employee . . . to
determine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability or
known medical condition.” FEHA’s definitions of “[p]hysical
disability,” “[m]edical condition,” and “[m]ental disability” do not
include association with another who has a disability. (Gov. Code,
§ 12940, subds. (j) & (m).) Thus, based on the plain language of
these sections, FEHA does not require an employer to
accommodate an employee’s association with a person who has a
disability. (See Segal v. ASICS America Corp. (2022) 12 Cal.5th
651, 662 [courts follow the plain meaning of clear statutory
language unless absurd consequences would result].)
Our interpretation of the FEHA provisions governing
reasonable accommodation claims is consistent with the
legislative history of Government Code section 12926,
subdivision (o). The Legislature expanded the list of protected
characteristics to include associational disability in a bill
seeking to expand the scope of FEHA’s protections
against discrimination specifically. An analysis by the
Assembly Judiciary Committee staff describes the bill as
“clarif[ying] that FEHA’s protections against housing and
employment discrimination cover associational rights as well,
i.e., discrimination based upon perceptions about who one may
be associating with will now be protected under the Act.”
(Assem. Com. on Judiciary, Analysis of Assem. Bill No. 1670
(1999-2000 Reg. Sess.) May 11, 1999, p. 15.) The key issue
raised by the bill was whether “civil rights statutes [should] be
amended to strengthen discrimination protections or clarify
29
ambiguities in the law[.]” (Id. at p. 1., original formatting
omitted.) This analysis demonstrates the Legislature added
section 12926, subdivision (o) to FEHA to strengthen
discrimination protections, not to expand the scope of interactive
process or reasonable accommodation claims.
Accordingly, consistent with the plain language of FEHA
and the legislative history, we conclude FEHA does not impose
reasonable accommodation or interactive process obligations on
an employer based on an employee’s association with a family
member or other person who has a disability.
We are sympathetic to Shahin’s point that her previous
supervisors permitted her to telecommute three days a week
for over a decade, and to her desire to care for her son. But we
agree with the dissent in Castro-Ramirez that “[h]owever
desirable it might seem for the law to require an employer to
accommodate the needs of the disabled associate of a
nondisabled employee, the courts are not free to expand the law
in this way without any basis in the statutory language or
other precedent.” (Castro-Ramirez, supra, 2 Cal.App.5th at
1063 (dis. opn. of Grimes, J.).)
ii. Shahin’s requested accommodation
for her disability (stress and anxiety)
is not per se unreasonable.
Next, Shahin contends the trial court erred by finding her
requested accommodation (reassignment to a new supervisor)
for her own disability is per se unreasonable. We agree.
“‘Reasonable accommodation’ is defined in . . . FEHA and
its implementing regulations only by way of example.” (Nadaf-
Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th
952, 972, fn. omitted.) Reasonable accommodation may include
30
“reassignment to a vacant position.” (Gov. Code, § 12926, subd.
(p)(2); Cal. Code Regs., tit. 2, § 11065, subd. (p)(2)(N); see
also id., § 11068, subd. (d)(1)(A) [“As a reasonable
accommodation, an employer or other covered entity shall
ascertain through the interactive process suitable alternate,
vacant positions and offer an employee such positions, for
which the employee is qualified, under the following
circumstances: [¶] (A) if the employee can no longer perform
the essential functions of his or her own position even
with accommodation . . . .”].)
The trial court relied on an unpublished federal district
court opinion (Alsup v. U.S. Bancorp (E.D. Cal., Jan. 15, 2015,
No. 2:14-CV-01515-KJM-DAD) 2015 U.S. Dist. LEXIS 5100(Alsup)) to conclude Shahin’s request to be reassigned to a new
supervisor was unreasonable as a matter of law. While
unpublished federal district court opinions are citable, they do
not constitute binding authority. (City of Hawthorne ex rel.
Wohlner v. H&C Disposal Co. (2003) 109 Cal.App.4th 1668,
1678, fn. 5.) We decline to follow Alsup.
There, plaintiff alleged she requested a transfer to a new
department because she suffered from severe depression and
acute anxiety stemming from her supervisor treating her “‘in a
negative and devaluing manner’” and making comments “‘of an
unwelcome sexual nature . . . .’” (Alsup, supra, 2015 U.S. Dist.
LEXIS at p. 2.) The court held plaintiff failed to state a claim
for failure to accommodate because “the plaintiff’s requested
accommodation, transfer to a new position under a new
supervisor, is unreasonable as a matter of law.” (Id. at p. 19.)
We find the court’s reasoning in Alsup unpersuasive. After
citing to out-of-state cases, the Alsup court stated that even
31
without the benefit of those cases, plaintiff has not stated a
claim because “[p]laintiff’s work environment could not have
been modified or adjusted in a manner that would have enabled
the plaintiff to perform the functions of her job.” (Ibid.)
Here, Shahin did not request reassignment to a new
position, but merely reassignment to a new supervisor (e.g., one
of the other supervisors she reported to indirectly—McReynolds
or Peters). If Garabedian indeed harassed Shahin (causing her
to suffer from stress, anxiety, and depression), placing Shahin
under a different supervisor would have been warranted and
would be an obvious, reasonable accommodation that would
permit Shahin to return to work. Thus, Shahin’s work
environment could have been adjusted (e.g., by transferring
Shahin to another supervisor or permitting Shahin to report
directly to Peters) so that Shahin could perform the essential
functions of her job. We therefore decline to follow Alsup and
conclude its purported per se rule—that reassigning an
employee to a new supervisor can never be a reasonable
accommodation—is inconsistent with FEHA. The trial court,
therefore, erred by granting summary adjudication of Shahin’s
reasonable accommodation claim based on her own disability.5
5 We reject Kaiser’s argument, made for the first time on
appeal, that Shahin’s stress is not a disability under FEHA.
Kaiser relies on Higgins-Williams v. Sutter Medical Foundation
(2015) 237 Cal.App.4th 78, 84 for the proposition that “[a]n
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 does not constitute a
disability.” But a jury could reasonably infer that Garabedian’s
purported harassment of Shahin was not “standard oversight.”
32
E. Kaiser is Not Entitled to Summary
Adjudication of Shahin’s Interactive Process
Claim
Shahin contends Kaiser did not engage in a good faith
interactive process with Shahin when she requested an
accommodation for her own disability (reassignment to a new
supervisor) and an accommodation for her son’s disability
(work from home three days a week).
With respect to the telecommuting accommodation,
FEHA does not recognize an interactive process claim based on
associational disability for the same reasons it does not
recognize a reasonable accommodation claim based on
associational disability. (See Discussion, section II.D., ante.)
We therefore turn to Shahin’s claim based on her own
disability.
Government Code section 12940, subdivision (n) imposes a
duty on employers to engage in an “interactive process” regarding
reasonable accommodations. (Scotch v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1003.) That provision establishes
that it is an unlawful practice for an employer “to fail to engage
in a timely, good faith, interactive process with the employee . . .
to determine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability or
known medical condition.” (Gov. Code, § 12940, subd. (n).) “[I]f
the process fails, responsibility for the failure rests with the party
who failed to participate in good faith.” (Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 54.) “While a claim of failure to
accommodate is independent of a cause of action for failure to
33
engage in an interactive dialogue, each necessarily implicates the
other.” (Ibid.)
As discussed above, Shahin’s requested accommodation—
reassignment to a new supervisor—is not unreasonable as a
matter of law. Kaiser, therefore, had a duty to engage in the
interactive process. A reasonable factfinder could conclude it
failed to do so.
In response to Kaiser’s request for additional documents
substantiating her disability, Shahin provided a letter
from her psychologist dated December 7, 2018, stating in
relevant part: “Shahin has been under my care since June 18,
2018 for anxiety and depression secondary to work related
stress. . . . [¶] . . . Per [ ] Shahin’[s] self-report and my clinical
impression, it appears that her psychiatric disturbances arose
first during episodes of supervisory sessions with her
supervisor/manager, and subsequently during reminiscences of
those events. She characterized those episodes of meeting with
her supervisor/manager as traumatic, adversarial, and
emotionally distressing. [¶] As her treating psychologist, my
main and only concern is [ ] Shahin’s mental health and
recovery. With that goal in mind, it is my recommendation that
she resumes her responsibilities at work with the
accommodation of a change of supervisor/manager.” According
to Kaiser, this was insufficient. Estrada emailed Shahin
explaining Kaiser needed additional documentation regarding
her request to work from home three days a week. The email
does not specifically address, however, Shahin’s request to be
assigned a new supervisor. Rather, it vaguely states that
essential functions of Shahin’s job include physically reporting
34
to the worksite and “report[ing] to the individuals who manage
your role and department.”
On this record, we conclude a reasonable factfinder could
find Kaiser failed to engage in the interactive process in good
faith by simply claiming that reporting to Garabedian was an
“essential function” of Shahin’s job, without any evidence or
explanation supporting this conclusion.6 Thus, the trial court
erred by granting summary adjudication of Shahin’s interactive
process claim based on her own disability.
III. Third Cause of Action for Retaliation in Violation of
CFRA
CFRA makes it unlawful for an employer “to refuse to
grant a request by an employee” for family care and medical
leave and “to interfere with, restrain, or deny the exercise of, or
the attempt to exercise, any right” provided by CFRA. (Gov. Code,
§ 12945.2, subds. (a) & (q).) “A plaintiff can establish a prima
facie case of retaliation in violation of [ ] CFRA by showing the
following: (1) the defendant was a covered employer; (2) the
plaintiff was eligible for CFRA leave; (3) the plaintiff exercised
his or her right to take a qualifying leave; and (4) the plaintiff
suffered an adverse employment action because he or she
exercised the right to take CFRA leave.” (Rogers v. County of Los
Angeles (2011) 198 Cal.App.4th 480, 491, original italics; Avila v.
6 We acknowledge Estrada’s email suggests setting up “a
formal meeting . . . to outline where we are in the interactive
process[.]” But a meeting would be futile based on Kaiser’s
position that reporting to Garabedian was an essential function
of Shahin’s job.
35
Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1254,
1260; § 12945.2.)
Preliminary, we reject Shahin’s argument that Kaiser
waived its challenge to her CFRA retaliation claim by, in its
summary judgment moving papers, focusing on Shahin’s failure
to prove retaliation arising from her leave in 2016, as opposed to
her leave in 2018. Although Kaiser addressed the 2016 leave
based on the complaint’s discussion of the 2016 medical leave,
and the allegation that Shahin experienced retaliation “for taking
the medical leave”, Kaiser also argued more generally that
Shahin’s CFRA claim failed because she “was never terminated,
and [Kaiser] had legitimate, non-retaliatory reasons for its
actions.” Then, in response to Shahin’s opposition memorandum,
which focused on alleged retaliation for her 2018 leave, Kaiser
addressed the 2018 leave specifically in its reply brief. Kaiser,
therefore, preserved its argument on appeal that Shahin failed to
establish a prima face case of retaliation in violation of CFRA
based on any of Shahin’s medical leaves.
Turning to the merits, Shahin contends a reasonable
factfinder can find Kaiser retaliated against her in violation of
CFRA. We disagree. In support of her argument, Shahin relies on
Peters’s testimony that she understood Shahin’s telecommuting
request to be covered by Kaiser’s Family Medical Leave Act
(FMLA) policy, and that Estrada thought Shahin might be “a
candidate for FMLA” if she had not already exhausted her
authorized leave. But there is no dispute Kaiser allowed Shahin
to take leave (in fact, Kaiser extended her leave), and whether
Shahin was eligible to take leave is irrelevant to whether she
suffered an adverse employment action in retaliation for doing so.
36
We similarly reject Shahin’s argument that a jury can infer
retaliation in violation of CFRA based on Dr. Tome’s testimony
that he viewed Shahin less favorably around the time she went
on leave in 2018. Dr. Tome clarified his opinion about Shahin
changed because she walked out of her evaluation meeting with
Garabedian, not because she went on leave. In any event, Shahin
cites no evidence that Dr. Tome had any role in the alleged
adverse employment actions she asserts (i.e., revocation of her
telecommuting arrangement, keeping her on leave rather than
assigning her to a different supervisor, and Garabedian’s alleged
harassing conduct). Indeed, Dr. Tome changed his opinion about
Shahin after her alleged mistreatment by Garabedian and the
decision to revoke her telecommuting arrangement. Thus, Dr.
Tome’s opinion could not have motivated those actions.
Accordingly, we conclude Shahin cannot demonstrate an
essential element of a prima face case of retaliation in violation
of CFRA, i.e., that she suffered an adverse employment
action because she exercised the right to take CFRA leave.
IV. Fourth Cause of Action for Retaliation in Violation
of Labor Code section 1102.5
Labor Code section 1102.5, subdivision (b), forbids
retaliation against an employee for disclosing information “if the
employee has reasonable cause to believe that the information
discloses a violation of state or federal statute, or a violation of or
noncompliance with a local, state, or federal rule or regulation.”
In support of this claim, Shahin generally alleges Kaiser
retaliated against Shahin “as a result of her complaints and/or
protests of FEHA and CFRA violations, Health and Safety
Code violations, the whistleblower laws . . . , among other
laws and regulations, including . . . , removing job responsibilities
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and authority, denying promotion, denying salary increase
and termination.” More specifically, the complaint alleges:
Kaiser . . . retaliated against Shahin because in January 2015
she refused to put profits over the health of Kaiser patients.
Specifically, in January 2015, Shahin processed a referral for a
patient to go to a specific convalescent hospital. Jerry Yu
proceeded to call Shahin and berate her for doing her job of
processing the transfer. . . . Further, on another occasion, Shahin
informed Yu that there was a referral compliance violation that
had legal ramifications. In response, Yu removed Shahin from
having responsibilities at KFH at West Los Angeles.”
In opposition to Kaiser’s motion for summary judgment,
Shahin abandoned her retaliation theory based on Yu’s conduct,
and instead focused on retaliation for her complaints in 2018
about Garabedian. We agree with the trial court that Shahin
cannot defeat summary judgment based on an unpled theory of
whistleblower retaliation. (See Jacbos v. Coldwell Banker
Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 [a
party may not oppose a summary judgment motion based on a
theory that is not alleged in the pleadings].)
V. Shahin’s Request for Punitive Damages
Shahin contends she is entitled to punitive damages
because she was intentionally discriminated against. Because we
held above that the trial court correctly granted summary
adjudication of Shahin’s claims for discrimination and retaliation
in violation of FEHA, we also hold it correctly granted summary
adjudication on the issue of punitive damages. (See Fullington v.
Equilon Enterprises, LLC (2012) 210 Cal.App.4th 667, 689-690;
Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 801-802 [a
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defendant must have committed a tortious act before punitive
damages can be assessed].)
VI. Evidentiary Rulings
Finally, Shahin contends the trial court abused its
discretion by sustaining all but nine of Kaiser’s objections to the
four declarations Shahin submitted in support of her opposition.
Specifically, Shahin argues Kaiser objected to certain exhibits
attached to declarations submitted in support of Shahin’s
opposition, and those objections were sustained, even though
Kaiser submitted the same documents in support of its motion.
Shahin further describes the trial court’s order as “quizzical,”
providing the following examples: the court sustained Kaiser’s
objection on relevancy grounds to Shahin’s description of her job
responsibilities, but overruled the objection to the evidence
summarizing her job responsibilities; the court overruled one
objection but sustained the other even though both of the
sentences objected to were explaining Shahin’s reporting
structure; the court sustained Kaiser’s objection on relevancy
grounds to Shahin’s declaration that she had never seen the job
description Kaiser submitted in support of its motion as Shahin’s
job description; the court sustained Kaiser’s objection on
relevancy grounds to a statement in a Kaiser employee’s
declaration, which purportedly impeached Garabedian; and the
court sustained Kaiser’s objections on the grounds of the best
evidence rule, relevance, improper opinion testimony, and lack of
foundation where Shahin declares that she complained to top
personnel in writing about Garabedian’s treatment and requested
accommodation even though Shahin attached the email she
described in her declaration.
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Even if the trial court erred by sustaining some or all of the
objections identified in Shahin’s opening brief, we conclude
Shahin’s argument fails because she neither argued nor
demonstrated prejudice from any error. (See, e.g., Twenty-Nine
Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435,
1449 [reversal for an erroneous blanket evidentiary ruling is
required only on a showing of prejudice]; Truong v. Glasser (2009)
181 Cal.App.4th 102, 119 [a party challenging a trial court’s
evidentiary rulings on summary judgment has two burdens on
appeal—to show affirmatively the rulings were error and to
establish prejudice].)
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DISPOSITION
The judgment is reversed. Summary adjudication of claims
for failure to accommodate and failure to engage in the
interactive process based on Shahin’s own disability is reversed
(Issue Nos. 10 and 12, respectively). Summary adjudication of all
other claims and issues is affirmed. The matter is remanded for
further proceedings consistent with this opinion. The parties
shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, Acting P. J.
We concur:
COLLINS, J.
DAUM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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