Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC390381 Michael L. Stern, Judge.
Law Offices of Olivia Sanders and Olivia Sanders for Plaintiff and Appellant.
Law Offices of Ivie, McNeill & Wyatt, Rupert A. Byrdsong and Diana Taing for Defendant and Respondent.
KRIEGLER, J.
Plaintiff and appellant Robin Robinson appeals from a summary judgment in favor of the Los Angeles Unified School District (the LAUSD) in this action for disability discrimination and failure to accommodate under the Fair Employment and Housing Act (the FEHA, Gov. Code, § 12940 et seq.). Robinson contends that: 1) the evidence established a prima facie case of disability discrimination based on her ankle injury; 2) triable issues of fact exist as to whether the LAUSD failed to provide reasonable accommodation; 3) triable issues of fact exist as to whether the LAUSD failed to engage in an interactive process to discuss accommodation; 4) the evidence showed a prima facie case of retaliation for requesting an accommodation for her injury; and 5) triable issues of fact exist as to whether the LAUSD failed to prevent or remedy discrimination. We conclude that Robinson was not subjected to an adverse employment action, offering paid sick leave was a reasonable accommodation, Robinson could not perform one of her essential job functions under the alternative accommodation that she requested, the undisputed facts showed that the LAUSD engaged in an interactive process, and there is no basis for her retaliation claim or the claim for failure to prevent or remedy discrimination. Therefore, we affirm.
All further statutory references are to the Government Code, unless otherwise stated.
The undisputed facts are drawn from the following evidence submitted in connection with the summary judgment pleadings: Robinson’s declaration, deposition testimony, and doctors’ notes, stipulated facts from a hearing officer’s decision adopted by the Personnel Commission that sustained a 30-day suspension, the declaration of LAUSD Return to Work Specialist Dina Bobadilla and the functional job analysis that Bobadilla reviewed.
In the early 1990’s, the LAUSD hired Robinson to work as an Early Education Center Aide 1. She works three hours per day, Monday through Friday, in a classroom with a teacher, another aide, and 24 children under the age of 6. Robinson’s job responsibilities as an early education aide are to help set up the classroom in accordance with the teacher’s lesson plan, supervise the children outside for an hour, assist with lunches, and place cots around the room and make them up for the children’s rest periods. In August 2006, she had approximately 200 hours of accrued vacation and sick leave.
On August 9, 2006, Robinson was walking home after work and twisted her ankle. She went to see Dr. Andrea Tweed. Dr. Tweed gave her a shot to reduce swelling and wrapped her ankle, but the injury was extremely painful. Dr. Tweed knew that Robinson worked for the LAUSD, but Robinson did not explain her job responsibilities as an early education aide. As a result of the injury, Robinson was unable to lift cots and make them up as beds for the children. Robinson asked Dr. Tweed for a note in order that she could discuss her restrictions with her employer. Dr. Tweed said she could go back to work and gave her a note about the injury in a sealed envelope.
The note stated, “Please be advised that [Robinson] was treated by me [on August] 9, 2006, for mild to moderately severely sprained left ankle. Patient was advised to remain non-weight bearing for the remainder of the day as well as the following 2 days after her arthrocentesis. [¶] Should you have any questions regarding this patient, please feel free to call at any of the above numbers.” Robinson did not read the note.
The next day, August 10, 2006, Robinson felt her ankle was better, so she reported for work. She gave the envelope with Dr. Tweed’s note to the office manager and went to work in the classroom. At approximately 9:45 a.m., Associate Principal Sonya Hicks asked to see her. Hicks told Robinson that she had to go home because of the restrictions stated in the doctor’s note. Robinson became extremely upset and said that she wanted to work. She asked Hicks to call Dr. Tweed, because that was not her understanding. She began yelling. Hicks refused to call Robinson’s doctor and told her that she needed to leave work. Robinson continued yelling and refused to leave. Hicks refused to discuss the matter further, noted Dr. Tweed’s note said she was to remain off work until August 11, and released her for the day.
When Hicks noticed that Robinson had not left school grounds, she called her supervisor, Director Iadrana Williams. She described the conversation with Robinson and faxed Dr. Tweed’s note to her. Williams confirmed that Robinson could not return to work with the restriction listed. She asked to speak to Robinson. Robinson became argumentative and began yelling at Williams over the phone. Robinson told Williams that she wanted to work, but Williams told her that she had to leave.
Robinson left the work site and went to the office of Early Education Center Human Resources. She asked an employee there to assist her to return to work, but the employee said there was nothing that she could do. Robinson went to the LAUSD doctor, but he said that he could not help. Robinson returned to Dr. Tweed, said she felt that she could go back to work, and obtained a new note.
Dr. Tweed’s note, dated August 10, 2006, stated, “Please be advised that [Robinson] was treated by me [on August] 9, 2006, for mild to moderately severely sprained left ankle. Patient was advised to remain non-weight bearing for the remainder of the day as well as the following 2 days after her arthrocentesis. [¶] Patient may return to work at her discretion within the window of the 2 days of dismissal. Please do not hesitate to call if you have any questions.”
On August 11, 2006, Robinson returned to work and gave the new note to a third party who gave it to Hicks. Robinson worked her regular three-hour day. She worked the following week as well. The classroom teacher had the other aide put down the beds and let Robinson work without setting up beds.
Dr. Tweed wrote a note dated August 21, 2006, which stated, “Please be advised that [Robinson] was re-evaluated for sprained [l]eft ankle August 9, 2006. Today’s determination is as follows: [¶] 1. Continue light duty[.] [¶] 2. Minimize ambulation in the event of pain. [¶] 3. Patient to make [a return appointment] in 1 week. [¶] Should you have any questions regarding this patient, feel free to contact me [a]t any of the above numbers.”
Dr. Tweed wrote another note, dated August 22, 2006, which stated similarly, “Please be advised that [Robinson] was re-evaluated for sprained [l]eft ankle [on] August 9, 2006. Today’s determination is as follows: [¶] 1. Return to work Aug. 22 2006 at 9:30 [a].m. – continue light duty[, ] specifically; a) no bending and no lifting children’s beds, as the added weight could be detrimental to patient’s timely recovery. [¶] 2. Minimize ambulation in the event of pain. [¶] 3. Patient to return to my office September 5, 2006 at 9:30 A.M. [¶] Should you have any questions regarding this patient, feel free to contact me [a]t any of the above numbers.”
On August 22, 2006, Hicks learned that Robinson was working in the classroom with an accommodation. Hicks said that if Robinson could not put down and set up the cots for the children, then she could not be at work. She told Robinson to leave the work site. Robinson did not have any further discussion with Hicks about these statements or request any accommodation.
Robinson went directly to a doctor employed by the LAUSD. The doctor referred her to the LAUSD Return to Work Specialist Dina Bobadilla. Robinson told Bobadilla that she wanted to return to work. Bobadilla reviewed the essential job functions for an early education center aide. However, the document that Bobadilla reviewed is in fact entitled, “LAUSD Early Childhood Associate” and the job summary states that the position works with first and second graders one on one to develop a supportive environment. Bobadilla discussed the essential job functions listed in this document with Robinson. Robinson said she felt that she could perform these functions with her injury.
Bobadilla initiated a conference call with Hicks to further discuss Robinson’s medical condition, job duties, and ability to return to work. Hicks said Robinson could not return to work, because she could not set up cots for the children. Robinson’s job duties included being able to supervise and assist small children ages 2 to 6 on the playground, which required her to stand and walk, and if necessary, lift a child who had fallen or suffered an injury, or to intervene in an altercation or other unsafe conduct by the children. Hicks stated that the injury, along with the physical restrictions ordered by her physician, prevented Robinson from performing her job without jeopardizing her own safety or the safety of the children and other coworkers. Robinson suggested that she could sit in the play area while supervising the children and if a child needed assistance, one of the other aides could assist. Hicks stated that this was unfair to the other aides and would jeopardize the safety of the children by increasing the student-to-aide ratio. Hicks told Robinson that she could use sick leave until she was released to return to work by her physician.
Bobadilla told Robinson that Hicks refused to allow her to return until she was fully healed. Robinson suggested that other employees could put down the beds for the children and Robinson could do her other job responsibilities. Hicks and the work specialist said they would not accommodate that request. Bobadilla instructed Robinson to complete medical treatment and wait until she received clearance from her physician or her restrictions improved, before she returned to work.
Robinson was marked ill for August 21 through August 25, 2006. She used sick leave and was paid for the days that she missed. Robinson had planned vacation time and holidays between August 28 and September 4.
Dr. Tweed wrote a note dated September 5, 2006, which stated, “Be advised that after today’s visit, Ms. Robinson will not be cleared [t]o return to work. More realistically, and for the benefit of all, Ms. Robinson’s clearance date to return to work will be [September] 12, 2006. Please call at any of the above numbers should you have any [q]uestions.” Robinson provided the note to Bobadilla. Bobadilla called Hicks to inform her that Robinson was not cleared to return to work until September 12, 2006.
Robinson was marked ill for six work days, from September 5 through September 12, because Dr. Tweed told her not to return to work due to her ankle condition. Robinson was paid for her sick time. On September 11, 2006, Robinson twisted her left ankle slightly on an incongruent surface.
When Robinson reported to work on September 12, 2006, Hicks told her a substitute was filling her position and refused to allow Robinson to work. Robinson worked September 13. However, Dr. Tweed wrote a note dated September 13, 2006, which stated that the previous treatment plan had been working well, until Robinson had twisted her ankle two days earlier. Robinson experienced excessive swelling and Dr. Tweed advised Robinson to undergo immediate physical therapy. Dr. Tweed stated that it would be in Robinson’s best interest to provide physical therapy, followed by a few days of ankle support, anti-inflammatory medication, and rest for four or five days beginning that day. Robinson was out from September 15 through September 19, 2006, used sick leave and was paid for the days.
Robinson does not recall ever having to lift or set up a bed after her ankle injury. A week or two later, Robinson felt her ankle was strong enough such that she could start lifting and making beds again. Robinson worked September 20, 21, and 22, and all of the following week.
The director told Robinson that she was going to be transferred to another site. Robinson did not have a problem with the transfer and did not express any concerns or dissatisfaction. Robinson received a 30-day suspension as a result of her comments to Hicks on August 10, 2006, which Robinson appealed. The personnel commission sustained the suspension. Robinson took no further action to challenge the suspension.
Robinson filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) in June 2007, stating that she had been harassed by Hicks from August 9, 2006, to October 3, 2006, including the following actions by Hicks: telling Robinson to leave work and return with a new doctor’s note; claiming Robinson threatened her; directing Robinson to remove her headphones while off-duty; and instructing Robinson to take her purse into the office, even though Robinson explained that it held a large amount of cash. When Robinson returned to work from an injury, Hicks refused to make reasonable accommodations. Robinson received a right-to-sue letter from the Department of Fair Employment and Housing.
On October 15, 2007, Robinson was seen by Dr. Timothy Hunt. After Robinson’s second or third visit, Dr. Hunt wrote a note requesting that Robinson not be required to set up beds. Robinson did not read the note or keep a copy. She gave the note to her supervisor Delores Johnson. Johnson asked her to see the LAUSD doctor. Neither Johnson nor Robinson said anything further. Robinson saw the LAUSD doctor later that day, who said Johnson had refused the requested accommodation and Robinson would need to see a return to work specialist. Robinson saw Bobadilla immediately. Bobadilla told her that she could return to work and gave her a piece of paper. Robinson’s understanding is that the paper said she could return to work with the accommodations requested by Dr. Hunt. Robinson took the paper back to her school site, gave it to Johnson, and returned to work. She was provided the requested accommodations.
Employees are permitted to sit while supervising children on the playground. However, the benches are low, hard plastic, and have no back support. Robinson usually took a chair outside with padding on the bottom and back for times that she would sit. On March 12, 2008, Johnson told Robinson to take the chair back inside. Robinson complied without explaining to Johnson why she wanted to sit in a padded chair. Robinson has a new supervisor at the site. Robinson still takes the padded chair outside sometimes, but no one else has ever said anything about it.
Robinson is currently being accommodated. Robinson believed that she could have performed her job safely at all times. She filed an amended complaint with the EEOC in October 2008 that included the October 2007 and March 2008 actions by Johnson. Robinson is expected to maintain regular attendance as an element of her job performance and received a commendation for attendance in 2008. She learned from her current supervisor that promotion opportunities are filled based on site seniority.
PROCEDURAL BACKGROUND
On May 7, 2008, Robinson filed a complaint against the LAUSD for discrimination and harassment on the basis of disability, failure to accommodate, failure to engage in an interactive process, retaliation, and failure to prevent or remedy discrimination and retaliation. The complaint alleged Robinson’s physical disability included ankle and back conditions that affect her ability to lift, stoop, bend, and stand. Despite her disabilities, she was able to perform the essential functions of her job with or without accommodation. From September 2006 and continuing to date, the LAUSD refused to reasonably accommodate Robinson’s physical disability by denying modification of her work assignment to allow her to avoid bending, lifting heavy items, and the use of seating with back support. The LAUSD refused to engage in an interactive process to determine how to achieve a reasonable accommodation, instead of taking the adverse action of refusing to allow her to work because of her disabilities. As a result, Robinson has lost wages and suffered emotional distress.
In November 2008, the LAUSD filed a motion for summary judgment on several grounds. The LAUSD argued that Robinson could not establish a prima facie case of discrimination, because she was not qualified to perform her job on the days that she missed work and had no evidence of an adverse employment action. Robinson cannot establish a cause of action for disability harassment, because there was no evidence of actionable conduct that was severe or pervasive. Robinson cannot establish her cause of action for failure to accommodate, because she was granted the only accommodation that she requested on each day that she worked. She cannot prove that the LAUSD failed to engage in the interactive process, because she admitted in her deposition that the LAUSD participated in the interactive process and granted accommodations requested. She cannot establish her cause of action for failure to prevent or remedy discrimination and retaliation, because no discrimination took place.
Robinson opposed the motion for summary judgment on the grounds that she could establish a prima facie case of discrimination. Specifically, her injuries qualified as physical disabilities, she had the ability to perform the essential duties of her job with accommodation, and requiring her to use sick leave was an adverse employment action because the LAUSD encourages regular attendance and the transfer was an adverse employment action because school site seniority is a basis for promotion. Robinson contends that Hicks failed to accommodate her and failed to engage in the interactive process when she told Robinson that she could not work. In addition, Hicks’s instruction to leave the work site on August 10, 2006, and August 22, 2006, forcing her to seek intervention from other LAUSD employees and take sick leave, constituted harassment on the basis of her disability. Similarly, requiring her to visit the LAUSD doctor in October 2007 was harassment. She also argued that once an employer is aware of a disability, it is the employer’s responsibility to suggest accommodations, even if the employee does not request any accommodation. The same acts constituted retaliation for requesting accommodation.
The LAUSD filed a reply on the grounds that Robinson’s sprained ankle was not a physical disability covered by the FEHA and allowing her to take sick leave based on her doctor’s orders was an accommodation. After a hearing, the trial court found the evidence showed no prima facie case of disability discrimination, no severe and pervasive conduct that would constitute actionable harassment, allowing Robinson to take sick leave was an accommodation, there was an interactive process, there was no discriminatory reason to support retaliation, and there could not be a failure to prevent discrimination if there was no discrimination to begin with. The court granted the motion for summary judgment. The court entered judgment in favor of the LAUSD on April 20, 2009. Robinson filed a timely notice of appeal.
DISCUSSION
Standard of Review and Burden-Shifting Analysis for Discrimination Claims
Summary judgment is appropriate “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 as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “The moving party bears the burden to demonstrate ‘that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.’ [Citation.] If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment ‘to make [its own] prima facie showing of the existence of a triable issue of material fact.’ [Citation.] ‘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.’ [Citation.]” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1246.)
We review summary judgment orders de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) “We do not resolve conflicts in the evidence as if we were sitting as the trier of fact. [Citation.] Instead, we draw all reasonable inferences from the evidence in the light most favorable to the party opposing summary judgment. [Citation.] All doubts as to the propriety of granting summary judgment are resolved in favor of the opposing party. [Citation.]” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 963 (Nadaf-Rahrov).)
For discrimination and retaliation claims, California allocates the burden of proof at trial according to the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas). (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” (Ibid.)
“Under the McDonnell Douglas test, the plaintiff has the initial burden of establishing a prima facie case of discrimination. (Guz, supra, 24 Cal.4th at p. 354.) To meet this burden, the plaintiff must, at a minimum, show the employer took actions from which, if unexplained, it can be inferred that it is more likely than not that such actions were based on a prohibited discriminatory criterion. (Id. at p. 355.) A prima facie case generally means the plaintiff must provide evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was qualified for the position he or she sought or was performing competently in the position held, (3) the plaintiff suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive. (Ibid.)” (Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1004 (Scotch).)
“If the plaintiff establishes a prima facie case, then a presumption of discrimination arises, and the burden shifts to the employer to rebut the presumption by producing admissible evidence sufficient to raise a genuine issue of material fact the employer took its actions for a legitimate, nondiscriminatory reason. (Guz, supra, 24 Cal.4th at pp. 355-356.) If the employer meets that burden, the presumption of discrimination disappears, and the plaintiff must challenge the employer’s proffered reasons as pretexts for discrimination or offer other evidence of a discriminatory motive. (Id. at p. 356.)” (Scotch, supra, 173 Cal.App.4th at p. 1004.)
“‘[W]e must keep in mind that the McDonnell Douglas test was originally developed for use at trial [(see Guz, supra, 24 Cal.4th at pp. 354-355)], not in summary judgment proceedings. “In such pretrial [motion] proceedings, the trial court will be called upon to decide if the plaintiff has met his or her burden of establishing a prima facie case of unlawful discrimination. If 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. In short, by applying McDonnell Douglas’s shifting burdens of production in the context of a motion for summary judgment, ‘the judge [will] determine whether the litigants have created an issue of fact to be decided by the jury.’”... Thus, “‘[a]lthough the burden of proof in a [discrimination] action claiming an unjustifiable [termination] ultimately rests with the plaintiff..., in the case of a motion for summary judgment or summary issue adjudication, the burden rests with the moving party to negate the plaintiff’s right to prevail on a particular issue.... In other words, the burden is reversed in the case of a summary issue adjudication or summary judgment motion....’”’ (Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 150-151, citation omitted.)” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343-344 (Arteaga).)
Discrimination
Robinson contends the evidence established a prima facie case of disability discrimination in violation of section 12940, subdivision (a). We disagree.
A. Disability Discrimination under FEHA
The FEHA makes it “an unlawful employment practice, unless based upon a bona fide occupational qualification... [¶]... [f]or an employer, because of the... physical disability... of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or 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.” (§ 12940, subd. (a).)
An employer is not prohibited “from refusing to hire or discharging an employee with a physical... disability... where the employee, because of his or her physical... disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations.” (§ 12940, subd. (a)(1).)
To establish a prima facie case for discrimination under section 12940, subdivision (a), Robinson must show that: (1) she suffers from a disability; (2) she could perform the essential functions of her job with or without accommodation (in the parlance of the Americans with Disabilities Act, 42 United States Code section 12101 et seq., that she is a qualified individual with a disability) (Green v. State of California (2007) 42 Cal.4th 254, 262); and (3) she was subjected to an adverse employment action because of her disability. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 962; Arteaga, supra, 163 Cal.App.4th at pp. 344-345.)
B. Essential Function
Robinson cannot establish a prima facie case of disability discrimination, because she cannot show that she could perform her job with or without accommodation. Specifically, the evidence shows that arranging cots for the children’s rest periods was an essential function of Robinson’s job and she could not perform this task with or without accommodation under her doctor’s restrictions.
The essential functions of a position are “the fundamental job duties of the employment position the individual with a disability holds or desires. ‘Essential functions’ does not include the marginal functions of the position.” (§ 12926, subd. (f).) “A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A)... [T]he reason the position exists is to perform that function. [¶] (B)... [T]he limited number of employees available among whom the performance of that job function can be distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.” (Id., subd. (f)(1).)
“Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer’s judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs.” (§ 12926, subd. (f)(2).)
Evidence that an employer or coworker made accommodations so an employee could avoid a particular task shows only that the job could be restructured, not that the function is nonessential. (Phelps v. Optima Health, Inc. (1st Cir.2001) 251 F.3d 21, 26 [although coworkers allowed the plaintiff to avoid lifting more than 50 pounds, the ability to lift 50 pounds was an essential function of the plaintiff's nursing job].)
The definition of “essential functions” under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.) set forth at 29 Code of Federal Regulations, part 1630.2(n) (2002) is nearly identical to the FEHA definition. “Although the Legislature has declared that FEHA is intended to be independent of, and provide greater protection than, the ADA (see § 12926.1, subd. (a)), when, as here, provisions of the two acts are similarly worded, federal decisions interpreting the ADA are instructive in applying FEHA. [Citations.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1226, fn. 7.)
It is clear from the undisputed evidence in this case that putting down cots and making up beds for the children was an essential function of Robinson’s job as an Early Education Center Aide 1. Robinson admitted that this was one of her daily job duties. Putting down cots and making the beds had to be performed for the children every day. Although putting down cots and making beds is not listed as an essential job function on the functional job analysis for an LAUSD Early Childhood Associate which Bobadilla relied on, that job analysis is expressly written for employees working with first and second graders, who would not have a rest period during their school day. Assuming this is the correct job analysis for Robinson’s position, it is clear that the employees working with much younger children had additional essential job functions for their positions.
Moreover, even the essential functions listed in the job description for older children require the employee to be able to handle objects weighing up to 20 pounds. Robinson described putting down cots and making beds as one of the job responsibilities that she performed prior to her ankle injury and after her injury healed. Hicks clarified to Bobadilla that Robinson worked with children ages two to six and stated that if Robinson could not put down and make up beds for the children, she could not perform her job responsibilities. Putting down cots and arranging beds for the children was clearly an essential function of Robinson’s job, which Robinson could not perform on the days that she was under orders from her doctor not to lift cots. There was no accommodation that would have allowed Robinson to put down and make up beds on these days. Since this was an essential function of her job that she was unable to perform with or without accommodation, she cannot establish a prima facie case of disability discrimination.
C. No Adverse Employment Action
Even were we to conclude making beds was not an essential function, we would find that no adverse employment action was taken against Robinson. Robinson contends that the LAUSD’s decision requiring her to take paid leave until her injury healed constituted an adverse employment action. This is simply incorrect.
“As the court recognized in Bass v. Board of County Com’rs (11th Cir. 2001) 256 F.3d 1095, in order for conduct to constitute an adverse employment action, ‘“‘some threshold level of substantiality’”’ must be met. (Id. at p. 1118.) Otherwise, every ‘minor and even trivial employment action that “an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.” [Citation.]’ (Smart v. Ball State University (7th Cir.1996) 89 F.3d 437, 441; Davis v. Town of Lake Park, Fla. (11th Cir. 2001) 245 F.3d 1232, 1238-1239 (Davis).)” (Wilson v. Murillo (2008) 163 Cal.App.4th 1124, 1134 (Wilson).)
“Instead, in the employment context, the ‘adverse employment action’ threshold is met when the employer’s action ‘impact[s] the “terms, conditions, or privileges” of the plaintiff’s job in a real and demonstrable way.’ (Davis, supra, 245 F.3d at p. 1239.) In other words, a plaintiff must show that a reasonable person in the circumstances would have viewed it as ‘a serious and material change in the terms, conditions, or privileges of employment.’ (Ibid.; Shotz [v. City of Plantation (11th Cir. 2003)] 344 F.3d [1161, ] 1181-1182.) Examples include discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote. (Thaddeus-X v. Blatter (6th Cir. 1999) 175 F.3d 378, 396 (Thaddeus-X).)” (Wilson, supra, 163 Cal.App.4th at pp. 1134-1135, italics omitted.)
“At the other extreme, courts have found no adverse employment action where the complained-of conduct had no effect on the plaintiff's employment status. (See, e.g., Davis, supra, 245 F.3d at p. 1240 [negative job performance [memoranda] is not an adverse employment action where there was no economic injury]; Flannery v. Trans World Airlines, Inc. (8th Cir. 1998) 160 F.3d 425, 428 [shunning is not an adverse employment action where the plaintiff did not allege that the ostracism resulted in a reduced salary, benefits, seniority, or responsibilities].)” (Wilson, supra, 163 Cal.App.4th at p. 1135.)
In this case, Robinson did not suffer an adverse employment action. Allowing a disabled employee to take paid leave until her injury heals is a reasonable accommodation by an employer. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226 (Hanson).) Robinson contends taking leave disrupted her attendance record, but she has not shown that her attendance record in 2006 had any effect on her employment status or reduced her salary, benefits, seniority or responsibilities.
Robinson notes on appeal that promotions are affected by site seniority. However, Robinson agreed to be transferred to the new site. She did not claim that her transfer was an adverse action in her EEOC charge, her complaint in this action, or her declaration submitted in support of her opposition to the motion for summary judgment. The undisputed evidence was that Williams suggested the transfer and Robinson agreed, in order that Robinson could work for a supervisor with whom she had worked before. Moreover, there is no evidence of any promotion opportunity that Robinson had at the site that Hicks supervised, based on Robinson’s seniority at that site. The trial court correctly concluded that Robinson could not establish a prima facie case of disability discrimination from the undisputed facts of this case.
Reasonable Accommodation
Robinson contends triable issues of fact exist as to whether the LAUSD failed to provide reasonable accommodation in violation of section 12940, subdivision (m). We disagree.
The FEHA make it “an unlawful employment practice, unless based upon a bona fide occupational qualification....: [¶]... [¶] (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation.” (§ 12940, subd. (m).)
“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. (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.)
“‘Reasonable accommodation’ is defined in the FEHA and its implementing regulations only by way of example. (§ 12926, subd. (n); Cal. Code Regs., tit. 2, § 7293.9, subd. (a); see Bagatti [v. Department of Rehabilitation (2002)] 97 Cal.App.4th [344, ] 354-356 [(Bagatti)].) This definition is virtually identical to the ADA’s statutory definition of the term, which is also by way of example. (42 U.S.C. § 12111(9); see also 29 C.F.R. § 1630.2(o)(2).) Where a FEHA provision is modeled on an ADA provision, a federal regulation interpreting the ADA provision may be useful to guide construction of the FEHA provision. (Bagatti, supra, 97 Cal.App.4th at p. 358.)” (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 972-973.)
“Section 12926, subdivision (n) provides: ‘“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 modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
“Title 42, United States Code section 12111(9) provides: ‘The term “reasonable accommodation” may include—[¶] (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and [¶] (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.”
“[A]n employer is liable under section 12940[, subdivision] (m) for failing to accommodate an employee only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 975.)
“[A] reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment...” provided it is likely that, at the end of such leave, the employee will be able to perform his or her employment duties. (Hanson [, supra, ] 74 Cal.App.4th 215, 226...; see Le Bourgeois v. Fireplace Manufacturers, Inc. (1998) 68 Cal.App.4th 1049, 1058-1059.)” (Wilson v. County of Orange, supra, 169 Cal.App.4th at pp. 1193-1194.)
“The employer is not obligated to choose the best accommodation or the accommodation 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 accommodation that is easier for it to provide.” [Citation.] As the Supreme Court has held in analogous circumstances, an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. [Citation.]’ [Citations.]” (Hanson, supra, 74 Cal.App.4th at p. 228, fn. omitted.)
In this case, the undisputed facts show that the LAUSD accommodated Robinson’s injury by allowing her to take accrued paid leave to heal. This was a reasonable accommodation, which allowed Robinson to heal and return to work as quickly as possible.
Robinson contends the LAUSD should have provided a different accommodation; namely, to restructure her job so that she would not have to lift cots and make beds. As explained above, putting down cots and making up the beds for the children was an essential function of Robinson’s job. The LAUSD was not required to provide an accommodation that would not result in Robinson being able to perform her essential job functions. Moreover, the LAUSD had discretion to select the effective, reasonable accommodation of paid leave over the accommodation that Robinson requested, which required another employee to perform part of Robinson’s job. The trial court properly found as a matter of law that the LAUSD provided a reasonable accommodation for Robinson’s disability.
Failure to Engage in the Interactive Process
Robinson contends the LAUSD failed to engage in an interactive process in violation of section 12940, subdivision (n). We disagree.
The FEHA makes it unlawful for an employer “to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (§ 12940, subd. (n).)
“The ‘interactive process’ required by the FEHA is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively. (Jensen, supra, 85 Cal.App.4th at p. 261.) Ritualized discussions are not necessarily required. (Hanson, supra, 74 Cal.App.4th at p. 228.)” (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1195.)
In this case, the LAUSD provided a reasonable accommodation from the very beginning in the form of accrued paid leave. The undisputed facts show that the LAUSD engaged in an interactive process between Bobadilla, Robinson, and Hicks to discuss Robinson’s request for a different accommodation, although the LAUSD ultimately chose for Robinson to take paid leave. (See Hanson, supra, 74 Cal.App.4th at p. 229 [employer cannot be held liable for failing to engage in interactive process when the employee was offered a reasonable accommodation]; see also Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 829, fn. 5 [employer cannot be held liable for failing to engage in interactive process when employer reasonably accommodated plaintiff’s disability].) There are no triable issues of fact as to this cause of action.
Retaliation
Robinson contends the LAUSD required her to take sick leave in retaliation for her request to accommodate her injury in violation of section 12940, subdivision (h). We disagree.
The FEHA makes it unlawful for an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (§ 12940, subd. (h).)
Sick leave was a reasonable accommodation as a matter of law considering the nature of Robinson’s injury and restrictions, in light of her essential job functions. Offering paid sick leave in response to an employee’s doctor’s orders requiring temporary restrictions on activity cannot be construed as a retaliatory measure. In addition, as discussed above, Robinson was not subjected to any adverse employment action, and therefore, she cannot establish a prima facie case of retaliation. The trial court properly granted summary judgment as to the cause of action for retaliation.
Failure to Prevent or Remedy Discrimination
Robinson contends the LAUSD failed to prevent or remedy discrimination in violation of section 12940, subdivision (k). The FEHA makes it unlawful for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k).) However, in this case, no discrimination occurred, and therefore, the LAUSD cannot be subject to liability for failing to prevent or remedy it. The trial court properly granted summary judgment of this cause of action as well.
DISPOSITION
The judgment is affirmed. Respondent Los Angeles Unified School District is awarded its costs on appeal.
We concur: TURNER, P. J., ARMSTRONG, J.