Opinion
H034995
10-27-2011
JULIA LEON, Plaintiff and Appellant, v. PACIFIC BELL TELEPHONE COMPANY, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CV107615)
Plaintiff and appellant Julia Leon began working as a union employee for Pacific Bell Telephone Company (Pacific Bell) in 2001. Her job as a bilingual service representative required her to constantly use a telephone and a mouse and keyboard to perform essential functions. In 2006, she developed a repetitive strain injury that affected both her hands, and she submitted a workers' compensation claim. The work restrictions dictated by her medical condition were initially accommodated by Pacific Bell through, among other things, a modified work schedule under which she worked part time.
After three months, she exhausted benefits provided under the Family Medical Leave Act. She was told that, under company policy, she would be categorized as a part time employee, with incumbent loss of salary and benefits, if she did not return to work on a full time basis. At her request, her doctor released her to return to work in late August 2006, and ergonomic changes to her workstation were implemented in September. But by mid-October, Leon was placed on temporary total disabled status because of her repetitive strain injury and because of anxiety and stress she was experiencing. Pacific Bell accommodated her by placing her on a company initiated unpaid leave of absence, which lasted some 10 months. After that, Leon was released to return to work with restrictions affecting the amount of time during her workday that she could use a mouse and keyboard. But due to the severity of these restrictions, which Pacific Bell understood to affect both hands, Pacific Bell determined that she could not perform the essential functions of her job with or without accommodation, and that she was not qualified for other positions that did not require frequent use of a mouse and keyboard. As a result, Leon's employment was terminated in September 2007.
Leon initiated a union grievance over her termination and for what she perceived as the lack of an adequate job search by Pacific Bell as an accommodation for her disability. The grievances were resolved in January 2008 by Pacific Bell reinstating Leon to her unpaid leave status and agreeing to conduct a 30-day priority job search. Leon was unresponsive to Pacific Bell's efforts to initiate the job search but it ultimately was conducted in June and July of 2008, to no success as no company positions were identified for which Leon was qualified that did not involve frequent use of a mouse and keyboard. Leon concurrently requested a trial of voice-activated software to ascertain whether that would enable her to perform the essential functions of her job, to which Pacific Bell agreed. That trial was implemented in July and August 2008, and was also unsuccessful. But Pacific Bell agreed to allow Leon to return to work and participate in training sessions, to make more ergonomic changes to her workstation that were recommended by a second evaluation, and to make other equipment changes to her workstation that she additionally requested. These ergonomic changes were implemented and by late October 2008, Leon successfully returned to work for Pacific Bell as a full time employee, where she apparently remains.
But in the interim she filed two complaints of disability discrimination with the Department of Fair Employment and Housing (DFEH), which issued right-to-sue letters. Before receiving the right-to sue letter on the second DFEH complaint, Leon filed this action against Pacific Bell in March 2008, alleging causes of action for disability discrimination, failure to investigate complaints of discrimination, failure to accommodate, retaliation, and wrongful discharge in violation of public policy. Her complaint sought punitive damages, among other relief. The trial court granted Pacific Bell's motion for summary judgment, from which Leon now appeals. We affirm.
STATEMENT OF THE CASE
We take the facts from the evidence submitted in connection with Pacific Bell's motion for summary judgment, excepting that which was stricken by the court or as to which the court sustained evidentiary objections.
A. Leon's Employment and Workers' Compensation Claim
Leon was hired by Pacific Bell in January 2001 as a bilingual service representative. She is a member of the Communications Workers of America (CWA), Local 9423, and her employment is covered by the agreement between Pacific Bell and CWA. Leon's job requires her to communicate with customers over the phone and assist them with sales and service-related matters. To perform the job, Leon must continuously use the telephone, computer, keyboard, and mouse.
Leon was counseled, given warnings, and suspended on several occasions during her employment for her failure to meet attendance standards. She was issued several written warnings of unpaid suspensions in 2005 and in early 2006. She acknowledged that these warnings and suspensions were justified.
On May 2, 2006, Leon was late for work and counseled for her tardiness, and again admitted that the counseling was justified. Later that same day, she filed a workers' compensation claim after telling her immediate supervisor, Teresa Naranjo, that she was experiencing pain from a repetitive strain injury.
Sometime later but while she was receiving workers' compensation benefits, Leon heard Associate Sales Director Natalia Rosales say to others, "[L]et's [not] make so much noise because maybe Julia can get offended and file a report." Leon attributed this comment to her having filed a workers' compensation claim, though Rosales had not expressly referred to that. But in retrospect, Leon can recall no offensive or negative comments made to her in the workplace that directly related to her repetitive strain injury, or any other disability.
B. Leon's Medical Disability
On May 3, 2006, Dr. Ramon Garcia placed Leon on temporary, total disability due to her repetitive strain injury affecting both of her hands. On May 11, 2006, he released her to return to work but restricted her use of a keyboard and mouse to a total of four hours per day. He also requested that an ergonomic evaluation of her workstation be performed. Because of her work restrictions, Pacific Bell accommodated Leon by placing her on a modified work schedule of four hours per day from May through July 2006, which was satisfactory to her. But throughout this period, Leon continued to have problems with attendance. On June 6, 2006, she received a written warning with a one-day suspension because of continued tardiness and absences, which she has acknowledged was justified.
While on her modified work schedule, Leon exhausted time off available to her under the Family and Medical Leave Act (FMLA). Because of this, Attendance Manager Leticia Sandoval informed her in or around July 2006, that if she continued to work on a part-time basis, it would be necessary to reclassify her as a part-time employee under company policy, affecting her wages and benefits.
On August 1, 2006, Leon was afraid of losing her full time job and told her doctor that she needed to return to work on a full time basis. He released her to return to work with no restrictions. On August 9, 2006, an MRI showed that in addition to her repetitive strain injury, Leon also suffered from degenerative disk disease affecting the "C3-4 and C4-5 levels" of her spine.
C. Subsequent Attendance and Discipline Issues
On August 11, 2006, Leon received a one-day suspension and a warning of a two-day suspension due to her continued tardiness and absences. Again, she admitted that the suspension and warning were justified.
On August 22, 2006, Leon told Associate Sales Director Rosales that she was feeling pain and experiencing "severe symptoms" from her repetitive strain injury and a migraine headache. She asked permission to take an unpaid leave of absence. At the time, Leon was not meeting attendance standards and did not have any paid time off available to her. Rosales informed Leon that she needed to follow established procedure by first obtaining approval for unpaid leave from Sandoval, the Attendance Manager, before Rosales could approve it. She also said that if Leon took time off, it would reflect negatively on her attendance record. But Leon went ahead and left work without management approval. Upon her return to work four days later, Sandoval suspended Leon for one day for taking an unapproved leave and issued her a warning of a two-day suspension.
Three weeks later, on September 15, 2006, Leon asked Naranjo, her immediate supervisor, if she could again take unpaid time off because her teenage son, who was home alone, had found a snake in the house and Leon needed to deal with the situation on an emergency basis. Naranjo denied Leon's request but again, Leon left work anyway without having obtained permission to do so. The next day, Sandoval suspended Leon for two days and issued her a warning of dismissal because she had left work without permission and was, at the time, on a warning of suspension due to unsatisfactory attendance. Leon told Sandoval that the suspension was unfair and discriminatory and she filed a union grievance over it, which was resolved favorably to Leon.
In September 2006, Pacific Bell provided Leon with an ergonomic evaluation that resulted in modifications to her workstation. Her mouse and keyboard were changed and her desk was lowered.
In late September 2006, Leon was accused of seeking and acquiring private medical information about a coworker (coding used for the coworker's medical leave). After an internal investigation, she was found to have violated the Privacy of Employee Records section of Pacific Bell's Code of Business Conduct. She was consequently suspended for three days in October 2006, and issued a final warning of dismissal based on this violation and a prior 2005 violation of the Code of Business Conduct for which she had been issued a written warning. That violation concerned accusations that she had harassed and threatened a manager who had rejected her demands to intervene in Leon's sister's termination from the company. She filed a union grievance over the suspension and the matter was settled in that the suspension and warning of dismissal were rescinded.
D. Leon's Leave of Absence
On or about October 17, 2006, one of Leon's doctors placed her on temporary total disability due to stress and anxiety she was experiencing and he prescribed medication and psychological therapy. Another doctor also placed her on temporary total disability for her repetitive strain injury. She submitted a claim for short-term disability benefits the following week.
On November 13, 2006, Leon was notified by Pacific Bell's third-party disability claims administrator that her claim for short-term disability benefits was being denied, effective October 25, 2006, for the asserted reason that the medical information provided by her doctors was insufficient to support her claim for benefits. Leon's doctors continued to characterize her as temporarily totally disabled and restricted her from working at all. On November 21, 2006, one of her doctors issued a report in which he discussed her physical restrictions and her psychological state and recommended further treatment for both. He also recommended that an "independent ergonomic evaluation" of Leon's workstation be performed in order to provide "the most optimal transition for her return to work," without saying when she might be able to do so.
On January 4, 2007, Antoinette Carter, who manages denied disability cases for Pacific Bell's Western Region, sent Leon a letter. The letter informed Leon that because her claim for disability benefits had been denied, she had exhausted all leave time available under the Family and Medical Leave Act, and her doctors continued to characterize her as totally disabled, Pacific Bell would grant her an unpaid leave of absence under the company initiated leave policy, effective October 25, 2006, and continuing through January 25, 2007. This leave was later extended through August 31, 2007, a period during which Leon's doctors continued to characterize her as disabled and unable to return to work, a conclusion with which she agreed.
E. Leon's DFEH Charge
On March 6, 2007, while she was out on unpaid leave, Leon filed a charge of discrimination with the DFEH. The charge alleged that "on May 2, 2006, September 18, 2006, October 6, 2006, and October 25, 2006 [Leon] was harassed, retaliated against (suspended twice) and lost health [benefits] due to [her] disability (cervical degenerative disk disease, depression and anxiety) in violation of the California Fair Employment and Housing Act." These dates correspond to Leon having been counseled for tardiness and the filing of her workers' compensation claim on May 2, 2006; her being disciplined on September 18, 2006, for leaving work without permission to attend to her son at home; her being disciplined in early October 2006, for being found to have violated Pacific Bell's Code of Business Conduct; and the effective denial date of her claim for short term disability benefits as well as the effective commencement date of her company-initiated unpaid leave of absence, October 25, 2006. The charge did not specifically allege the denial of a reasonable accommodation or a termination, or expressly refer to Leon's repetitive strain injury as a disability for which she suffered discrimination. She requested and received a right-to-sue letter the same day.
F. Leon's Termination and Rescission Thereof
On August 13, 2007, some 10 months into her unpaid leave of absence, Carter sent Leon a letter informing her that if her doctors continued to consider her as disabled from performing the essential functions of her job, Pacific Bell would not extend her leave beyond September 3, 2007.
On August 28, 2007, Leon's doctor released her to return to work beginning August 29, 2007, with restrictions that included no holding or cradling the telephone, and no use of the keyboard or mouse for more than fifteen minutes per hour and for no more than two hours per day total. Leon was noted to be right hand dominant and to have been able to use the keyboard to type one sentence within one minute with her left hand. But the doctor did not specify this time whether Leon's condition affected one or both of her hands. The doctor also recommended another ergonomic evaluation of her workstation.
Carter was informed of Leon's work restrictions by Sandra Fletcher, a Job Accommodation Specialist for Sedgwick Claims Management Services, Inc., which acted as the third party administrator of Pacific Bell's workers' compensation claims. Carter asked Fletcher to confirm that Leon's work restrictions affected both of her hands and was told that this was the case. Fletcher confirmed this with Leon's doctor's office. Carter consulted with Felicia Jones, the Pacific Bell Call Center Administrator, to ascertain whether Leon's work restrictions, as Carter understood them, could be accommodated. Jones informed Carter that Leon's restrictions, considered severe and affecting both hands as had been noted in the initial medical report of Leon's disability and later confirmed, could not be accommodated. Carter also made the determination that no positions were available for which Leon was qualified and could perform the essential functions of the job with or without accommodations, and that a priority job search and an ergonomic evaluation would be futile given the severity of Leon's work restrictions to both hands. On September 12, 2007, Leon was informed that her employment with Pacific Bell had been terminated, effective September 11, 2007. Her past attendance issues, whether related to her disability or not, played no part in her termination. Carter was not aware of Leon's claim of disability discrimination when she made the decision to terminate her employment.
On September 26, 2007, Leon's union filed a grievance in connection with her termination and a second one for "unjust job search process."
On October 19, 2007, even though she had already been terminated, Leon's doctor provided a clarification of her work restrictions relating to her repetitive strain injury, limiting her continuous repetitive manipulations, such as using a keyboard, to no more than 15 minutes per hour and no more than two hours per day.
In January 2008, the union and Pacific Bell reached an agreement to settle Leon's grievances. Her termination would be rescinded and she would be placed back on unpaid leave while Pacific Bell conducted a 30-day priority job search. Leon was reinstated on February 29, 2008, after some delays in the signing or processing of the settlement agreement.
G. Leon's Second DFEH Charge
On February 27, 2008, Leon filed a second charge of discrimination with the DFEH. She alleged that she had been discriminated against based on her disability when she was denied reasonable accommodation and terminated on September 11, 2007, after submitting medical information about her disability and work restrictions on August 28, 2007.
H. The Priority Job Search and Voice-Activated Software Trial
Carter sent Leon a letter on February 29, 2008, concerning the priority job search that was part of the settlement of Leon's union grievances. The letter referenced Leon's work restrictions as noted in her doctor's August 28, 2007 report and requested Leon to contact Carter to schedule a conference call and to complete a form called a "Required Skills List," which was said to be enclosed with the letter. Leon did not contact Carter or return the Required Skills List, which she later said was not enclosed with Carter's letter. But she did contact her union representative about Carter's letter and she filed this lawsuit on March 6, 2008, one year from the date she had filed her first DFEH complaint and had received a right-to-sue letter.
Leon filed suit before receiving the right-to-sue letter from the DFEH on her second charge, which letter was issued 10 months later on January 5, 2009, after an investigation. And she did not later seek to amend her complaint to incorporate this second charge, rendering it inoperative for purposes of this litigation. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613 [employee must exhaust administrative remedies under FEHA by filing an administrative complaint with the DFEH and obtaining a notice of right to sue " ' "before bringing suit on a cause of action under the act or seeking the relief provided therein" ' "]; Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 492.)
On March 10, 2008, Carter sent Leon another letter asking her to complete the Required Skills List and to schedule a conference call in connection with the priority job search that had been part of Leon's union grievance resolution. Leon again did not respond or indicate that she had not received the Required Skills List to complete. Carter sent another letter to Leon on March 25, 2008, requesting that she complete the Required Skills List and informing her of a scheduled conference call on March 31, 2008, to discuss the priority job search.
The March 31st conference call went forward as scheduled. Carter and Leon were joined on the call by Leon's union representative, Teresa Calderon, and Call Center Administrator Felicia Jones. During the call, Pacific Bell, through Carter and Jones, was advised by Calderon that despite information initially received from her doctor about the scope of her repetitive strain injury and later confirmed, Leon's work restrictions were then applicable to her right hand only and that she could use her left hand at full capacity. Calderon also asked if Leon could be provided with voice-activated software as an accommodation. Carter agreed to consult with a Job Accommodation Specialist about this request, and a follow-up conference call was scheduled.
The follow-up call took place on April 24, 2008. Carter offered Leon the option to try voice-activated software for one month to determine whether it would work for her by enabling her to perform the essential functions of her job. Carter also said that they could instead just proceed with the 30-day priority job search. On May 1, 2008, Pacific Bell began the process of purchasing the voice-activated software.
On June 13, 2008, Carter informed Leon by letter that the voice-activated software had been purchased and that if she wished to proceed with a trial of it, she should report to work 10 days later for a trial period that would end on July 25, 2008. Carter further advised that if Leon did not report to work on June 23, 2008, a 30-day priority job search would be conducted instead.
On June 18, 2008, Carter received a letter from Leon complaining about many of Pacific Bell's actions and indicating her view that they had never agreed upon a return-to-work date, which she said was to be negotiated. Carter responded by letter two days later that the voice-activated trial would begin as planned on June 23, 2008.
Leon did not report to work on June 23, 2008. Accordingly, Pacific Bell began the 30-day priority job search on June 25, 2008. The job search identified two positions for which Leon was qualified, one in San Diego and one in Antioch. Both positions required frequent use of a keyboard and mouse.
On July 22, 2008, Leon notified Carter that she would return to work on July 24, 2008, to begin her 30-day voice-activated software trial. Pacific Bell allowed her to do so, despite the one-month delay.
I. Leon's Return to Full-Time Work
On August 12, 2008, an ergonomic expert retained by Pacific Bell evaluated Leon's workstation. He issued a report recommending new ergonomic equipment.
On August 18, 2008, Leon informed her new supervisor, Andres Caro, that the voice-activated software was not going to work to enable her to perform the essential functions of her job. She demanded instead new ergonomic equipment in the form of a specific keyboard and mouse that had been discussed in the March 31, 2008 conference call, in addition to that recommended by the ergonomic expert. On August 22, 2008, Leon went to work and demanded that she be given work. She was permitted to work by participating in training sessions relating to her position pending completion of the research, purchase, and installation of the new ergonomic equipment.
By October 30, 2008, Pacific Bell had obtained and made available to Leon all of the new ergonomic equipment she had requested and that was recommended by the retained expert. Leon was satisfied with the new equipment and expressed her belief that it would enable her to perform all the essential functions of her job within the limitations of her restrictions. As of the time of briefing in this case, Leon was successfully working at her job within her restrictions and work was going very well for her.
II. Procedural Background
Leon's complaint, filed March 6, 2008, alleged causes of action for (1) disability discrimination in violation of Government Code section 12940, subdivision (a); (2) failure to investigate complaints of discrimination in violation of section 12940, subdivision (k); (3) failure to accommodate in violation of section 12940, subdivision (m); (4) retaliation in violation of section 12940, subdivision (h); (5) wrongful termination in violation of public policy (whistle-blowing); and (6) wrongful termination in violation of public policy (filing a workers' compensation claim). The prayer of the complaint sought compensatory and punitive damages, among other relief.
Further statutory references are to the Government Code unless otherwise indicated.
The complaint named as defendants Pacific Bell Telephone Company, AT&T Communications of California, AT&T, and AT&T Corp. The judgment and this appeal concern only defendant Pacific Bell Telephone Company. The record does not reveal the status of the other named defendants.
On July 2, 2009, Pacific Bell filed its motion for summary judgment, or alternatively for summary adjudication of issues, which targeted each separate cause of action and the claim for punitive damages. Leon opposed the motion. She also belatedly filed a supplemental opposition without leave of court. The supplemental opposition included argument, with deposition testimony offered in support, that Pacific Bell's "processes and procedures for administrating its employees' disability claims are discriminatory" and related claims concerning its implementation of its company-initiated unpaid leave-of-absence policy, which, Leon argued, together demonstrated that Pacific Bell employees are deprived of the opportunity to engage in a meaningful interactive process to identify reasonable accommodations. Pacific Bell filed its reply, and moved to strike Leon's late-filed supplemental opposition, to which Leon also filed opposition.
The court heard argument on Pacific Bell's motion for summary judgment and its motion to strike and took both matters under submission. The court later issued its written order granting both motions. As to the grant of summary judgment, the court ruled that with respect to the first cause of action for disability discrimination, Pacific Bell had demonstrated that its employment actions were for legitimate, non-discriminatory reasons and that Leon had failed to raise an issue of material fact that the proffered reasons were untrue or pre-textual, or that Pacific Bell had acted with discriminatory animus. As to the second cause of action for failure to investigate complaints of discrimination, the court ruled that because such a cause of action is dependent upon a claim of actual discrimination, which the court had found had no merit, this cause of action likewise had no merit. As to the third cause of action for failure to accommodate under section 12940, subdivision (m), the court ruled that what Leon was factually attempting to pursue was a claim for failure to engage in the interactive process under section 12940, subdivision (n), a different cause of action and one that was not pleaded. The court characterized Leon's opposition with respect to this cause of action as targeting an asserted delay by Pacific Bell in "conducting a 30-day priority job search, in providing [Leon] with the voice-activated software accommodation, and in conducting a proper ergonomic evaluation," which the court construed as an unpleaded claim for failure to engage in the interactive process. As to the fourth cause of action for retaliation under section 12940, subdivision (h), which prohibits retaliation in the workplace for engaging in protected conduct, the court determined that Pacific Bell had shown an absence of disputed fact about the legitimacy of its employment actions concerning Leon, that it had legitimate, non-retaliatory reasons for those actions, and that Leon had failed to raise a disputed material fact to establish that Pacific Bell's proffered reasons for its actions were untrue or pre-textual. The court's reasoning was the same with respect to the fifth cause of action for wrongful termination in violation of public policy (whistle-blowing). With respect to the sixth cause of action for wrongful termination in violation of public policy (filing a workers' compensation claim), the court observed that Leon had indicated that she did not oppose the motion.
Leon does not articulate a cognizable challenge to the court's granting of Pacific Bell's motion to strike. Instead, she asserts in a footnote in her opening brief that it "was error for the [t]rial [c]ourt to consider [Pacific Bell's] arguments [in reply], but to strike and ignore [Leon's belated supplemental opposition]." Points made in a footnote, without analysis or an argument put forth under a separate heading are insufficient to raise a claim of error on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B); Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011, 1016.) We accordingly consider the issue waived and do not address the merits of this claim or consider the papers Leon filed as her belated supplemental opposition to the motion for summary judgment.
The court also issued two separate orders ruling on each party's respective evidentiary objections submitted in connection with the motion for summary judgment. We do not address these orders either as Leon does not challenge any of the court's evidentiary rulings on appeal.
Judgment was entered on October 1, 2009, and this timely appeal followed.
DISCUSSION
Leon's contentions are put forth in her opening brief. She did not file a reply brief.
Leon contends that the court erred with respect to the first cause of action for disability discrimination because Pacific Bell failed to proffer facts establishing a legitimate, nondiscriminatory reason for "failing to seek[] the ergonomic evaluation for over 18 months" and because its "processes and procedures for administrating its employees' disability claims" preclude an effective interactive process that would lead to an identification of reasonable accommodations, a claim articulated below not in the complaint but instead for the first time in Leon's belatedly filed supplemental opposition to the motion for summary judgment, which the trial court struck and which we have concluded is beyond the scope of our review for the lack of a properly articulated challenge by Leon to that ruling.
Leon challenges the court's ruling with respect to the second cause of action for failure to investigate discrimination by contending that not only were there disputed issues of fact precluding summary judgment on the preceding cause of action for disability discrimination but that the failure to investigate allegations of discrimination does not require "actual discrimination," only a complaint thereof. Therefore, she argues, the cause of action was not dependent upon her prevailing on her disability discrimination cause of action, as the court had determined.
Leon appears to challenge the court's ruling on the third cause of action for failure to accommodate by contending that the court read the claim too narrowly and that Pacific Bell's alleged delay in providing a reasonable accommodation constituted both a failure to engage in the interactive process and a failure to accommodate, both of which she contends are subsumed within the allegations of the third cause of action.
Leon contends in a single paragraph without citation to authority that the court's ruling with respect to the fourth cause of action for retaliation was erroneous because Pacific Bell failed to show, with undisputed facts, that its reasons for its adverse employment actions against Leon were legitimate and non-retaliatory.
Leon finally contends, without articulating why or framing a coherent argument, that she has a viable cause of action for wrongful termination in violation of public policy and that the court erred by granting summary judgment on this claim.
II. General Legal Framework and Standard of Review
The Fair Employment and Housing Act (FEHA, § 12900 et seq.) protects employees from discrimination based on a wide variety of grounds. "Like the [Americans With Disabilities Act (ADA)] . . . the FEHA, section 12940, subdivision (a), prohibits discrimination based on an employee's physical disability. Under the FEHA, it is unlawful '[f]or an employer, because of the . . . physical disability [or] medical condition . . . of any person, . . . to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.' [Citation.] Although section 12940 proscribes discrimination on the basis of an employee's disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties." (Green v. State of California (2007) 42 Cal.4th 254, 262; Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926.)
Thus, to establish a general claim of disability discrimination under the FEHA, the disabled plaintiff must "demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation." (Green v. State of California, supra, 42 Cal.4th at p. 267.) Where an employee claims discriminatory discharge under section 12940, subdivision (a), the employee has the burden of showing "(1) that he or she was discharged because of a disability; and (2) that he or she could perform the essential functions of the job with or without accommodation . . . ." (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 962 (Nadaf-Rahrov).)
As pertinent here, FEHA also imposes liability against an employer for "fail[ing] to take all reasonable steps necessary to prevent discrimination . . . from occurring," a provision under which Leon claims that Pacific Bell failed to investigate complaints of discrimination. (§ 12940, subd. (k).) "An actionable claim under [this section] is dependent on a claim of actual discrimination: 'Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.' (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.)" (Scotch v. Art institute of California (2009) 173 Cal.App.4th 986, 1021 (Scotch).)
FEHA also imposes liability against an employer for "fail[ing] to make reasonable accommodation for the known physical . . . disability of an . . . employee" and for "fail[ing] 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 . . . disability . . . ." (§ 12940, subds. (m) & (n).) "The elements of a failure to accommodate claim are similar to the elements of a . . . discrimination claim . . . . The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual" whose disability the employer failed to reasonably accommodate. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen); Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) An employer is required to accommodate only a "known" disability. (§ 12940, subd. (m).) "[A]n employer 'knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation. ' " (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.) For a failure-to-accommodate claim, the plaintiff need not show that an adverse employment action was taken. (Jensen, supra, 85 Cal.App.4th at p. 256.) " 'Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]' [Citations.]" (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.)
"The term 'reasonable accommodation' is defined in the FEHA regulations only by means of example: ' "Reasonable accommodation" may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.' (§ 12926, subd. (n); see Cal. Code Regs., tit. 2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).)" (Scotch, supra, 173 Cal.App.4th at p. 1010.)
The employer is not obligated to choose the preferred accommodation or the one the employee seeks. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Rather, " ' "the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the [one] that is easier for it to provide." [Citation.] As the Supreme Court has held . . . an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. [Citation.]' [Citations.]" (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. omitted.)
In Nadaf-Rahrov, the court of appeal held that a cause of action for either failure to accommodate (§ 12940, subd. (m)) or failure to engage in the interactive process (§ 12940, subd. (n)) requires a showing by the employee that he or she was a " 'qualified individual with a disability' " (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 963) in that he or she was able with reasonable accommodation to perform the essential functions of the job held or desired. (Id. at pp. 975-976.) It further defined a reasonable accommodation as "a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired." (Id. at p. 974; see also Scotch, supra, 173 Cal.App.4th at p. 1010.) Finally, it placed on the plaintiff the burden of proof on these issues. (Nadaf-Rahrov, supra, at p. 978.)
Where the case has been decided below on summary judgment or adjudication, " ' "[i]f the employer presents admissible evidence either that one or more of plaintiff's prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant's showing. . . ." ' " (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344.)
The general standard of review for summary judgment or adjudication is well established. The motion is well taken "if 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 [or adjudication] as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar); Lackner v. North (2006) 135 Cal.App.4th 1188, 1196; Code Civ. Proc., § 437c, subds. (f)(1) & (p)(2).) The defendant does this either through evidence that conclusively negates an element of the plaintiff's cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, at p. 855.) Only if the defendant meets this burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense. (Id. at p. 850.) Thus, here, Pacific Bell had the initial burden of showing that Leon could not establish that it failed to provide a reasonable accommodation for her disability or medical condition or to engage in a good faith interactive process. (Scotch, supra, 173 Cal.App.4th at p. 1005; Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984-985.)
We independently review an order granting summary judgment or adjudication, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in his favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue." (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In construing the evidence the moving party's showing is "strictly scrutin[ized]" while the opposing party's showing is viewed "liberally." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.) Any doubts about whether the motion should have been granted "should be resolved in favor of the party opposing the motion." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 superseded by statute on another ground as stated in Aguilar, supra, 25 Cal.4th at p. 854.) Notwithstanding the liberality afforded to a plaintiff's showing in opposition to summary judgment, his or her evidence remains subject to close examination. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) There 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 applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) "Moreover, plaintiff's subjective beliefs in an employment discrimination case do not create a genuine issue of [material] fact; nor do uncorroborated and self-serving declarations. [Citations.]" (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.)
In performing our review, we are not bound by the trial court's stated rationale, but independently determine whether the record supports the trial court's conclusion that the plaintiff's claim failed as a matter of law. (Scotch, supra, 173 Cal.App.4th at p. 1003.)
III. Leon has Not Shown Error in the Grant of Summary Judgment
A. Disability Discrimination
As noted, the court's order granting summary judgment determined with respect to Leon's first cause of action for disability discrimination in violation of section 12940, subdivision (a), that Pacific Bell had demonstrated that its employment actions were for legitimate, non-discriminatory reasons and that Leon had failed to raise an issue of material fact that the proffered reasons were untrue or pre-textual, or that Pacific Bell had acted with discriminatory animus. The extent of Leon's cognizable challenge to this ruling on appeal is that the court erred because Pacific Bell failed to proffer facts establishing a legitimate, non-discriminatory reason for "failing to seek[] the ergonomic evaluation for over 18 months." On this record, this claim has no merit for several reasons.
She also contends that the court erred with respect to this claim because Pacific Bell's "processes and procedures for administrating its employees' disability claims" preclude an effective interactive process that would lead to an identification of reasonable accommodations, a claim that we have already concluded is beyond the scope of our review.
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First, as articulated, the claim is one for failure to accommodate under section 12940, subdivision (m), put forth under a theory of disability discrimination under subdivision (a). But these are two separate claims, with the failure to accommodate actionable under section 12940, subdivision (m) but not under subdivision (a). "Disability discrimination is defined by subdivision (a) of section 12940 ... and, as pertinent, outlaws discrimination against the person 'in compensation or in terms, conditions, or privileges of employment.' Plaintiff has not alleged such discrimination, because she has not properly pleaded that she was denied compensation or that an adverse employment action was taken against her. Rather, ... [she] has fairly pleaded a claim for damages premised on a failure to make a reasonable accommodation in violation of subdivision (m) of section 12940." (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 366; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255-256 [disability discrimination under section 12940, subd. (a) is a different claim than one for failure to accommodate under subdivision (m), with different elements].) Thus, Leon's actual cause of action for failure to accommodate is not actionable as a separate claim for disability discrimination under section 12940, subdivision (a).
Second, as noted, a plaintiff asserting a FEHA claim is required to exhaust administrative remedies by filing an administrative complaint with the DFEH and receiving a right-to-sue letter before pursuing a cause of action that is the subject of the administrative complaint. (Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1613.) The operative DFEH complaint here asserts disability discrimination in that "on May 2, 2006, September 18, 2006, October 6, 2006 and October 25, 2006 [Leon] was harassed, retaliated against (suspended twice) and lost health [benefits] due to [her] disability (cervical degenerative disk disease, depression and anxiety) in violation of the California Fair Employment and Housing Act." The DFEH complaint does not reference or claim a failure to accommodate and the dates provided do not correspond to such a claim, as argued, referring instead to specific occasions on which Leon was disciplined for various matters and the date on which her claim for short term disability benefits was denied. The charge did not specifically allege the denial of a reasonable accommodation, or even expressly refer to Leon's repetitive strain injury as a disability for which she suffered discrimination. Accordingly, Leon failed to exhaust her administrative remedies with respect to a claim for disability discrimination, as she has pursued it.
Third, it is undisputed on this record that after it was recommended by her doctor in May 2006, Leon received an ergonomic evaluation of her workstation that resulted in changes for her benefit in September 2006. This was in addition to her modified work schedule to accommodate her work restrictions that then indisputedly affected both hands. Moreover, Leon was placed by her doctors on temporary total disability status from October 17, 2006 until August 29, 2007, a determination that meant she could not work at all and one with which she agreed. Pacific Bell accommodated her during this period by placing her on company initiated unpaid leave of absence as she had exhausted benefits under the FMLA. When she was released to return to work, her restrictions, which were not clarified by Leon or her doctors to then affect only one hand, were still severe such that Pacific Bell determined that she could not be reasonably accommodated in her existing job and that she was not qualified for other positions that did not require similar frequent use of a keyboard and mouse, and her employment was terminated. Pacific Bell thus carried its burden of demonstrating an absence of a triable issue of material fact with respect to its reasonable, legitimate business decision to terminate Leon's employment rather than to then provide a second ergonomic evaluation.
Once that decision was rescinded and Leon finally clarified on March 31, 2008 that her work restrictions then only affected her right hand, it is undisputed that Pacific Bell accommodated her by conducting a priority job search and a voice-activated software trial, and by retaining an expert to perform a second ergonomic evaluation, the recommendations of which were fully provided along with additional ergonomic changes Leon requested, within three months of the date she agreed to return to work. If earlier clarification of her work restrictions was needed, it was up to Leon, not Pacific Bell to have provided it. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443 [employee cannot expect employer to read his or her doctor's mind regarding the specifics of employee's medical restrictions]; Steffes v. Stepan Co. (7th Cir. 1998) 144 F.3d 1070, 1072-1073 [obligation fell to employee to update or clarify doctor's work restrictions given their "blanket nature"]; Templeton v. Neodata Services, Inc. (10th Cir. 1998) 162 F.3d 617, 619 [employer not liable for failure to provide reasonable accommodation where employee fails to clarify medical restrictions].) Under these undisputed facts, Leon failed to demonstrate the existence of a triable issue of fact that Pacific Bell's proffered reasons for its employment actions, including any delay in providing the second ergonomic evaluation, were false or pre-textual. Accordingly, even if it were legally tenable for Leon to pursue her claim for disability discrimination expressed as a claim for failure to accommodate, the cause of action was shown to have no merit.
Accordingly, for all these reasons, we reject Leon's contentions on appeal about the viability of her cause of action for disability discrimination under section 12940, subdivision (a).
B. Failure to Investigate Claims of Discrimination
As noted, FEHA also imposes liability against an employer for "fail[ing] to take all reasonable steps necessary to prevent discrimination . . . from occurring," a provision under which Leon claims that Pacific Bell failed to investigate her complaints of discrimination. (§ 12940, subd. (k).) Further as noted, an actionable claim under this section is dependent on a claim of actual discrimination. (Scotch, supra, 173 Cal.App.4th at p. 1021; Trujillo v. North County Transit District, supra, 63 Cal.App.4th at p. 289.) As we have already determined that Leon's claim for actual discrimination under section 12940, subdivision (a) has no merit, her claim for failure to investigate claims of discrimination under section 12940, subdivision (k) likewise has no merit, as the trial court so concluded.
C. Failure to Accommodate
As noted, Leon appears to challenge the court's ruling on the third cause of action for failure to accommodate by contending that the court read the claim too narrowly and that Pacific Bell's alleged 18-month delay in providing a reasonable accommodation in the form of ergonomic changes to her workstation constituted both a failure to engage in the interactive process under section 12940, subdivision (n) and a failure to accommodate under subdivision (m), both of which she contends are subsumed within the allegations of the third cause of action.
Preliminarily we observe that this FEHA claim, whether asserted under section 12940, subdivision (m) or (n), also requires Leon to have exhausted administrative remedies by filing a complaint with the DFEH and receiving a right-to-sue letter before pursuing the particular cause of action. (Okoli v. Lockheed Technical Operations Co., supra, 36 Cal.App.4th at p. 1613; Romano v. Rockwell Internal, Inc., supra, 14 Cal.4th at p. 492.) And the failure to exhaust administrative remedies is considered a jurisdictional as opposed to procedural defect. (Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890.) As previously noted, the operative DFEH complaint here does not allege facts that give rise either to a claim for failure to accommodate or one for failure to engage in the interactive process, instead asserting that Leon was harassed and retaliated against on certain dates because of a disability—a distinctly different theory of liability. (Freeman v. Oakland Unified School Dist. (9th Cir. 2002) 291 F.3d 632, 636-638.) The cause of action, whether for failure to accommodate or failure to engage in the interactive process, thus has no merit for this fundamental, threshold reason.
Even if the third cause of action were not jurisdictionally barred for the failure to exhaust administrative remedies, as noted, a plaintiff pursuing a claim for failure to accommodate must show that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual whose disability the employer knew of and failed to accommodate. (Jensen, supra, 85 Cal.App.4th at p. 256; Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1192.) The employee must have requested an accommodation, and the parties must have engaged in the interactive process with a breakdown in that process that was not due to the fault of the employee. (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1252.) And the employer is not obligated to provide the employee's preferred accommodation, only a reasonable one. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 228.)
As we have already concluded with respect to Leon's disability discrimination claim, it is undisputed on this record that Pacific Bell provided many accommodations to Leon over an extended period of time on account of her diagnosed disabilities. But in particular, she was provided with an ergonomic evaluation in September 2006, which resulted in changes to her workstation. And while her doctor again recommended such an evaluation in November 2006, Leon was by then already placed on temporary total disability, precluding her return to work, and she remained so until late-August 2007, during which she was being accommodated by an unpaid leave of absence and any ergonomic evaluation would have been futile. When she was released to return to work, her restrictions were severe and were reasonably understood by Pacific Bell to still affect both of her hands, such that Pacific Bell determined that she could not be reasonably accommodated, and her employment was terminated. Pacific Bell thus carried its burden of demonstrating an absence of a triable issue of material fact with respect to its reasonable, legitimate business decision to terminate Leon's employment rather than to then provide a second ergonomic evaluation as an accommodation. Once that decision was rescinded and Leon finally clarified on March 31, 2008 that her work restrictions then only affected her right hand, it is undisputed that Pacific Bell accommodated her by, among other things, retaining an expert to perform a second ergonomic evaluation, the recommendations of which were fully implemented along with additional ergonomic changes Leon requested, within three months of the date she agreed to return to work. This was after Leon was unresponsive to Pacific Bell's earlier efforts to conduct a priority job search, her own lack of clarification of her work restrictions, and her own delay in returning to work after her termination was rescinded and her work restrictions clarified. (Beck v. University of Wisconsin Bd. of Regents (7th Cir. 1996) 75 F.3d 1130, 1135 [employee cannot demonstrate employer's liability under ADA where employee obstructed interactive process]; Templeton v. Neodata Services, Inc., supra, 162 F.3d at p. 619 [employer cannot be held liable for failure to accommodate where employee fails to engage in interactive process by clarifying extent of medical restrictions].) Under these undisputed facts, Leon failed to dispute with a triable issue of material fact that Pacific Bell reasonably accommodated her, and that its proffered reasons for its employment actions, including any delay in providing the second ergonomic evaluation, were false or pre-textual.
As noted, FEHA imposes an additional duty on the employer to "engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations." (§ 12940, subd. (n).) "While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) The elements of a cause of action for failure to do so are: 1) the plaintiff has a disability covered by FEHA and known to the defendant; 2) the plaintiff requested a reasonable accommodation for his or her disability so that he or she could perform the essential functions of the job; 3) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he or she could perform the essential job requirements; 4) the defendant failed to participate in a timely, good faith interactive process to determine whether reasonable accommodation could be made; 5) resulting in harm to the plaintiff. (Gelfo, supra, 140 Cal.App.4th at pp. 61-62; § 12940, subd. (n); CACI No. 2546.) An employee who is reasonably accommodated cannot pursue a claim for failure to engage in the interactive process. (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1195 [ultimate accommodation necessarily reflects success of interactive process].)
It is the employee's burden to trigger the interactive process by informing the employer that accommodation under FEHA is needed and desired (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384), and once that process is triggered, both parties must proceed in good faith to keep the lines of communication open and to exchange information in seeking the requested accommodation, avoiding obstruction of the process. (Jensen, supra, 85 Cal.App.4th at pp. 265-266; Scotch, supra, 173 Cal.App.4th at p. 1013.) "It is an employee's responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee." (Jensen, supra, 85 Cal.App.4th at p. 266.)
When an employee sues the employer alleging violation of the duty to engage in the interactive process, the court will "look at the facts with regard to whether the breakdown in the informal, interactive process was due to [the employee or the employer]" (Jensen, supra, 85 Cal.App.4th at p. 265) to "isolate the cause of the breakdown and then assign responsibility." (Beck v. University of Wisconsin Bd. of Regent, supra, 75 F.3d at p. 1135.) "Liability hinges on the objective circumstances surrounding the parties' breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith." (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)
Leon did not plead a separate cause of action for failure to engage in the interactive process, and she could not overcome summary judgment by creating issues of fact on unpleaded claims, as the pleadings are the outer measure of materiality on a motion for summary judgment. (Kendall v. Walker (2009) 181 Cal.App.4th 584, 598; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663-1664.) But even if such a cause of action had been pleaded, it is undisputed that Pacific Bell reasonably accommodated Leon in numerous ways over an extended period of time, precluding a claim for failure to engage in the interactive process. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229 [employer cannot be held liable for failure to engage in the interactive process when employee was offered a reasonable accommodation]; Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1195; see also Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 829.) It is also undisputed that it was she who interfered with the interactive process, even if only inadvertently, by not earlier clarifying her own medical restrictions and cooperating when requested in the priority job search the parties had agreed upon, also precluding Pacific Bell's liability for failure to engage in the interactive process. It follows that any claim for failure to engage in the interactive process would have no merit for these reasons as well.
D. Retaliation
To establish a prima facie case of retaliation under FEHA, a plaintiff must show that he or she engaged in a protected activity, the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer's action. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; § 12940, subd. (h).) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, non-retaliatory reason for the adverse employment action. If the employer does so, the presumption of retaliation disappears and the burden shifts back to the employee to prove intentional retaliation. (Yanowitz v. L'Oreal USA, Inc., supra, at p. 1042.)
The trial court concluded with respect to this cause of action that Pacific Bell had shown an absence of disputed fact about the legitimacy of its employment actions concerning Leon, that it had non-retaliatory reasons for those actions, and that Leon had failed to raise a disputed material fact to establish that Pacific Bell's proffered reasons for its actions were untrue or pre-textual.
Leon contends in a single paragraph without citation to authority that the court's ruling was erroneous because Pacific Bell failed to show, with undisputed facts, that its reasons for its adverse employment action against Leon were legitimate and non-retaliatory. She posits that the protected action she engaged in was the filing of two DFEH complaints and that she "suffered suspensions, involuntary leave and a termination at the hands of [Pacific Bell] while two separate DFEH cases were pending." But we have already concluded that Pacific Bell articulated and established that its actions taken with respect to Leon's employment were for legitimate, non-discriminatory business reasons, and that there was an absence of material fact to dispute this. And Leon offers no facts beyond speculation to support that any of Pacific Bell's employment actions were intentionally retaliatory, or pre-textual, or that any of them were causally related to her having filed her DFEH claims. Moreover, her termination from employment, later rescinded, was beyond the scope of the operative DFEH complaint, precluding this aspect of her claim as well.
We accordingly reject Leon's skeletal and conclusory claim on appeal that the trial court's ruling with respect to her cause of action for retaliation was error.
E. Wrongful Termination in Violation of Public Policy
In another single paragraph, Leon contends that the trial court's ruling with respect to her fifth cause of action for wrongful termination in violation of public policy was error. She contends that because she has viable causes of action under FEHA, her "[t]ermination of employment in violation of the public policy contained in FEHA supports a wrongful termination cause of action." But her cause of action, as pleaded, alleges her termination because she engaged in whistle-blowing activities unrelated to FEHA or her complaints of disability discrimination. And she offers no facts or argument to demonstrate that the court's summary judgment ruling on her claim, as pleaded, was error.
Moreover, to establish a claim for wrongful discharge in violation of public policy, a plaintiff must prove (1) a termination or other adverse employment action; (2) the termination or other action was a violation of public policy, as expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between the termination or other adverse action and the employee's protected activity. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 79, 82; Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1258-1259.) A violation of FEHA may support the cause of action. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161.) Even if Leon had pleaded FEHA as the statutory basis of the alleged violation of public policy, she again articulates no facts or legal argument to demonstrate that the trial court's ruling was error.
We accordingly also reject Leon's skeletal and conclusory argument as to this claim as well.
DISPOSITION
The judgment is affirmed.
Duffy, J. WE CONCUR:
Bamattre-Manoukian, Acting P.J.
Mihara, J.