Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC370364 Ann I. Jones, Judge.
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, Henry H. Pham and Briana M. Kim for Plaintiff and Appellant.
Office of the City Attorney, Dennis A. Barlow, Carol A. Humiston; Jackson Lewis, Mindy S. Novick and Sherry L. Swieca for Defendant and Respondent.
JACKSON, J.
INTRODUCTION
Plaintiff Diane Wilson appeals from a summary judgment in favor of defendant City of Burbank in this action based on employment discrimination and harassment. She contends the trial court erred in sustaining defendant’s objections to portions of her declaration, and that triable issues of material fact exist. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff’s Employment with Defendant
Defendant hired plaintiff as an employee effective October 1, 1986. Plaintiff worked as secretary to the Deputy City Manager in Capital Projects from 1993 to 2000. When he retired, the remaining capital projects were absorbed by other departments and there were no available secretarial positions for plaintiff.
At the urging of the Fire Chief’s Executive Assistant, Roberta Mirzayans (Mirzayans), a secretarial position was created in the Fire Department, and plaintiff was hired to fill this position. Half of plaintiff’s time would be spent working for the Battalion Training Chief and half for the Disaster Preparedness Coordinator.
Plaintiff initially reported to Mirzayans. Conflict developed between plaintiff and Mirzayans. As of January 1, 2003, the Battalion Training Chief-at that time Mario Gagnon (Gagnon)-became plaintiff’s supervisor. On June 16, 2003, Battalion Chief Robert Trowbridge (Trowbridge) became the Battalion Training Chief and plaintiff’s supervisor. He held this position through December 2004. Battalion Chief William Sanders (Sanders) became the Battalion Training Chief on January 1, 2005. He became plaintiff’s direct supervisor.
The Disaster Preparedness Coordinator was Rich Baenan (Baenan). Assistant Chief Rick Mehling (Mehling) was the Acting Disaster Preparedness Coordinator from March through September 2003, and the Interim Fire Chief from July 2004 through June 2005.
B. Plaintiff’s Injury and Medical Leave
In March 2003, plaintiff injured her eye. She went out on medical leave beginning May 13. She remained out through September 16, 2004.
Defendant paid plaintiff’s medical benefits for the 12 weeks she was out under the Family and Medical Leave Act (FMLA), as well as for an additional three months while she was out on unpaid medical leave.
While plaintiff was out on medical leave, other employees handled some of her duties. Defendant also hired a temporary employee to help with plaintiff’s duties.
C. Plaintiff’s Return to Work
On August 9, 2004, plaintiff met with Roger Brennan (Brennan) and the ADA coordinator, Kathy Lindblom (Lindblom), to discuss her return to work. Brennan told plaintiff that, according to defendant’s doctor who had examined plaintiff, plaintiff was unable to return to work and perform the duties listed in her job analysis. He suggested that she look at positions in other departments. Plaintiff responded that other positions would constitute a demotion, and she could perform the duties listed in the job analysis with accommodations. Brennan allowed plaintiff to take the job analysis to her doctor for his opinion on whether she could perform the listed duties.
On August 27, plaintiff’s doctor, Douglas Gellerman, M.D., wrote a letter clearing plaintiff to return to work with certain restrictions. He wrote that plaintiff suffered an orbital floor fracture with an entrapped muscle. After surgery to repair the fracture and free the entrapped muscle, plaintiff’s “double vision persisted on gaze up, left and downward.” Multiple doctors concluded that “due to the nature of the injury and the symptoms, surgery should not be attempted.”
Dr. Gellerman stated that because of this condition, plaintiff “is limited to tasks involving close work and reading. She has difficulty with any tasks that are to the left or in down gaze. She needs good lighting to minimize her symptoms. Her computer needs to be situated to the right, and she would need frequent breaks because she has difficulties with convergence and accommodations due to her strabismus problem.”
Dr. Gellerman added that, “[u]nfortunately, it is difficult to be more specific in the nature of what she can do or cannot do until she is back at work trying to accomplish tasks. However, she has good vision and she is in good health other than her strabismus problem and should be offered an opportunity to work with limitations.”
After receiving Dr. Gellerman’s letter, defendant notified plaintiff that she was to return to work on September 16, 2004. Plaintiff requested and received an email confirmation that the accommodations set out in the letter would be honored. She was advised that defendant was aware that she might have to take breaks from the computer to rest her eyes, and she would be able to perform “non-computer related work” at those times.
Plaintiff’s workstation was a large modular horseshoe-shaped work top, allowing her to locate her computer as far to the right as necessary. She had overhead lighting and a task light. About 90 percent of her work involved close work and reading. According to a position information questionnaire plaintiff filled out in September 2002, about 71 percent of her time was spent on the computer, and 10 percent on the telephone.
When plaintiff returned to work, her workstation had not been altered except for a flat screen monitor in place of her old monitor. The following day, her old monitor was returned. Plaintiff told Mehling the flat screen monitor was easier for her to see, since it reduced the glare. Mehling informed her that the flat screen monitor belonged to the training center and had to be returned. Plaintiff asked him for a flat screen monitor but did not receive one.
When plaintiff took breaks, her supervisors “chastised [her] for taking a break.” They watched her closely and asked where she was when she was not at her desk. They suggested that she put a sign in her window indicating where she was when she left the office. This embarrassed and humiliated her.
Additionally, plaintiff told Mehling that she could not split her time between the Battalion Training Chief and the Disaster Preparedness Coordinator. She explained that “both divisions [were] extremely demanding and that [she] could not perform both task[s] given her medical condition, especially since the Battalion Training Chief required [her] to work at the computer for the vast percentage of [her] work day.” Mehling continued to require her to work for both.
Shortly after plaintiff returned to work, Mehling advised her that the Safety Office was holding a seminar on ergonomics. He encouraged her to attend. She attended on October 20, 2004. She then requested that Trowbridge order an ergonomic evaluation of her workstation. The evaluation was conducted on October 28. Recommendations were made, and Mehling approved them. Trowbridge arranged for installation of a keyboard system under plaintiff’s workstation in the location she requested, a glare screen was installed over plaintiff’s computer and a document holder was installed.
Plaintiff disputes that the recommendations were approved and implemented, but her dispute is that “[t]he additional ergonomic recommendations [and] accommodations were not provided to her in a timely manner.... On October 25, 2004, Jack McKinney of Risk Management performed a workstation assessment. Mr. McKinney concluded the following changes needed to be made to [plaintiff’s] workstation: 1) Install a Human Scale articulating keyboard platform; 2) Mount a document holder on the right side of her monitor; 3) Install a glare screen and a full spectrum light on the document holder. Despite the fact that this report was sent to Chief Mehling on November 10, 2004, [plaintiff] was not accommodated until May 2005, after she worked over six (6) months without accommodations that would help alleviate her symptoms and after she repeatedly begged for the changes.”
During this time, plaintiff did not see an ophthalmologist. She did not provide defendant with a letter from Dr. Gellerman or another doctor indicating that additional accommodations were required.
In July 2005, the Human Resources department sought “promotability” ratings for plaintiff and another Fire Department employee, Maureen Doan (Doan), both of whom had applied for the position of Permit Technician. Battalion Chief Tracy Pansini (Pansini) learned that the position was only part time and conveyed the information to plaintiff. He also told plaintiff that if she was unhappy in her current position, she could transfer to a recently vacated downstairs counter position without a pay cut, but plaintiff declined the offer.
D. Plaintiff’s Performance Evaluations
Under defendant’s performance rating system, employee performance was rated annually. Any employee receiving at least an “acceptable” or “satisfactory” performance rating generally received a step increase in salary.
Although the majority of plaintiff’s performance ratings prior to her medical leave were “acceptable” or “satisfactory” or better, she did receive several ratings of “needs improvement.” Nonetheless, by May 2001, plaintiff was at the top of her pay range and could not receive any more step increases. In 2001 and 2002, Mirzayans gave plaintiff performance ratings of “above satisfactory” and “exceeds expectations.”
After plaintiff returned from her medical leave, Gagnon gave plaintiff her performance rating for the 2002-2003 period. She received an overall rating of “achieves expectations.” There were some criticisms of her performance, however. Specifically, Gagnon noted that plaintiff needed to improve her communication with her supervisor, arrive and leave on time, keep her personal phone calls to a minimum and not let personal problems distract her from her work.
These criticisms were similar to those she had received earlier. In 1987, her performance evaluation noted her “casual attitude about being on time for her desk hours and relieving her co-workers.” A later evaluation noted her reluctance to discuss things she did not understand with her supervisor and her need to follow schedules set by her supervisor.
In 1991, plaintiff’s performance evaluations indicated that she needed to “consult with supervisor more, ” her attendance and punctuality were “not acceptable, ” and she needed to “decrease personal calls.” These criticisms were reiterated in 1992.
Plaintiff disputed defendant’s characterization of the performance evaluation as well as its statement that she conceded in her deposition that these criticisms were not substantially different from those made about her performance in the previous year’s evaluation. The basis of her dispute was her “belie[f] the evaluation was given to her in order to make her feel that she was not wanted back to work because of her disability. [She] was presented with a bias [sic] performance evaluation within the first two weeks she returned to work after her leave for a [sic] evaluation period three year [sic] before. This was inflammatory, contained inaccurate comments and was not done correctly. In addition, the evaluation did not accurately reflect the type of work [plaintiff] was doing.”
In fact, when Mirzayans pushed to have plaintiff hired for the newly-created secretarial position in 2000, Pansini and Battalion Chief Mike Davis were opposed to her hiring due to her negative reputation. It was only due to Mirzayans’ strong recommendation that plaintiff was hired for the position.
Sanders prepared plaintiff’s 2005 performance evaluation. He gave her a rating of “exceeds expectations.” He did note, however, that “[m]any absences interfere with [plaintiff’s] ability to perform at a higher level. I would encourage [plaintiff] to plan her leave calendar well in advance. Coordinate with her supervisors and complete appropriate paperwork. Also [plaintiff] needs to control unproductive office time spent away from her desk or on the phone not related to City work.”
E. Plaintiff Disciplined for Dishonesty, Files a Discrimination Claim and Is Given a New Supervisor
In November 2005, Pansini, Sanders and Fire Marshall Dave Starr (Starr) learned that plaintiff and Doan had falsely reported on their time cards that they had taken a two-hour lunch break to attend a meeting. Rather than attend the meeting, they had gone to lunch and gone shopping. Doan admitted doing so. Sanders interviewed plaintiff, who was evasive and said she would have to check her planner to see if she attended the meeting. Sanders told her he knew she had not attended the meeting and he did not want her to make matters worse by lying to him. At that point, she admitted going shopping instead of to the meeting. She and Doan received written reprimands for their dishonesty.
On April 7, plaintiff filed a complaint with the Department of Fair Employment and Housing (DFEH). She claimed she was harassed, denied promotion, denied accommodation, and retaliated against due to physical disability.
Starr, who had written Doan’s reprimand, knew that she and plaintiff were friends and that both Doan and plaintiff disliked Mirzayans and some of the other clerical staff at the Fire Department. It was decided that Starr rather than Mirzayans would supervise Doan. Starr told Doan, who worked on the first floor, that she would be better off staying out of the personality conflicts on the second floor, where plaintiff and Mirzayans had their offices. Starr was unaware of the complaint plaintiff had filed with the DFEH.
Pansini, who became Fire Chief after Mehling, was concerned about problems with the Fire Department’s clerical staff and about plaintiff’s supervision by battalion chiefs, who were not generally administrators. He therefore transferred supervision of the second floor clerical personnel, including plaintiff, to Jennifer Kaplan, the Fire Department’s Administrative Officer. Plaintiff was informed of the transfer and told she would be moving from her office to a cubicle, where Mirzayans could watch her. Additionally, Pansini told her to make a list of her job duties. When she asked him why, he told her that he did not “want to go through another period of nothing getting done like when [she was] off on disability, so [he needed] to know what [she did] and how [she did] it now!”
F. Plaintiff Goes Out on Sick Leave
Plaintiff did not return to work after April 16, 2006. She felt that defendant did not want her back at work and did not want to accommodate her, so people were trying to get her to quit. Since returning to work, she was exhausted; her eyes were tired and bloodshot; she had headaches; her back, neck and shoulders were sore; and she was anxious.
In order to ensure compliance with the FMLA/CFRA, on April 24 Lindblom was notified that plaintiff had been out sick since April 17. On April 25, plaintiff sent Lindblom an “excuse slip” signed by Dr. Christopher Buttelman, explaining that plaintiff was unable to return to work due to “generalized stress/anxiety disorder.” He tentatively released her to return to work as of May 22.
Lindblom sent plaintiff a letter advising her of her FMLA/CFRA rights and a “Certificate of Health Care Provider.” Plaintiff returned the certificate, which stated that she was unable to perform “any of her usual work functions.” Plaintiff exhausted her sick leave on May 16 and remained on leave without pay.
Also on May 16, Lindblom left a message for plaintiff asking whether she would be returning to work on May 22. On May 19, plaintiff sent Lindblom an “excuse slip” signed by Dr. Buttelman stating that plaintiff would be off work until July 10 due to “stress anxiety/panic attacks.” Lindblom asked defendant’s benefits coordinator to send plaintiff paperwork for claiming short term disability.
On July 7, plaintiff sent Lindblom another “excuse slip” signed by Dr. Buttelman, indicating that she would not return to work until August 21 due to “stress and generalized anxiety.” On July 10, Lindblom notified plaintiff that she had exhausted her FMLA leave. On July 19, Lindblom wrote to plaintiff about beginning the interactive process to determine plaintiff’s options. She requested that plaintiff have her doctor fill out a medical report responding to specific questions regarding whether plaintiff was able to perform the essential functions of her job and, if not, what reasonable accommodations were necessary for her to return to work.
Plaintiff did not respond, but on August 21, she sent Lindblom another “excuse slip” signed by Dr. Buttelman stating that she was unable to return to work until September 8 due to “job generalized stress anxiety disorder.” On August 28, plaintiff sent Lindblom a fax stating that she would be seeing her doctor on September 8, “at which time the questions will be answered regarding the interactive process.” On September 7, plaintiff sent Lindblom another “excuse slip, ” stating that plaintiff would be unable to return to work until October 6 due to “job stress.”
Since plaintiff had failed to respond to Lindblom’s requests regarding the interactive process, on September 27, Lindblom ordered plaintiff to attend an interactive meeting on October 5. Lindblom again requested a medical report to assist in the process. On October 3, plaintiff’s counsel, Joseph M. Lovretovich (Lovretovich) contacted Lindblom to ask if she objected to his presence at the October 5 meeting; she said she did not object.
Plaintiff and Lovretovich attended the meeting with Lindblom and Assistant City Attorney Terry Stevenson (Stevenson). Lindblom asked whether plaintiff would be returning to work on October 6, and plaintiff said she would not. Lindblom explained the interactive process, the job accommodation process and plaintiff’s rights. Lindblom explained that she could move plaintiff into any job opening at or below her current job level, and that plaintiff could compete for any job opening that would constitute a promotion. Lindblom asked plaintiff to review current job openings to see if she was interested in any of them. Lindblom also explained about retirement, worker’s compensation and short and long term disability. She additionally explained about FMLA and CFRA.
Lindblom and plaintiff signed an action plan requiring plaintiff to provide a doctor’s extension of time off and Lindblom to provide a new job analysis for plaintiff’s job. Plaintiff would take this to her doctor to enable him to answer the questions for the medical report. Plaintiff sent Lindblom an “excuse slip” from Dr. Buttelman extending plaintiff’s leave to December 1.
On November 15, Lindblom notified Lovretovich of the status of the new job analysis. On November 20, she emailed him to ask whether plaintiff would be returning to work on December 1. She did not hear from him, but on December 1 she received an “excuse slip” extending plaintiff’s leave to March 1. Lindblom provided Lovretovich with the new job analysis on January 30, 2007 and requested the medical report by February 17, after which she would set up another meeting.
Lindblom did not hear back from Lovretovich or plaintiff. On February 26, Stevenson called Lovretovich and asked whether plaintiff would be returning to work on March 1. Stevenson also reminded Lovretovich about the medical report. Lovretovich said plaintiff would be seeing her doctor at the end of the week. The following day, plaintiff sent Lindblom another “excuse slip” from Dr. Buttelman stating that plaintiff would be unable to “return to school” until June 4 due to “job stress.”
On March 2, Stevenson left a message for Lovretovich regarding the medical report. He emailed Lovretovich on March 7. On March 23, Lindblom received a letter from Dr. Buttelman stating that plaintiff was seeing a psychiatrist, was “not able to physically perform any of her ‘essential functions’ required by the position of Secretary” and could not return to work at the Fire Department. Stevenson wrote to Lovretovich on April 6 advising him that Dr. Buttelman’s letter did not address the specific issues that had been requested, including reasonable accommodations. Stevenson requested that Lindblom’s paperwork regarding the medical report be forwarded to plaintiff’s psychiatrist. He also expressed his disappointment that it appeared plaintiff was not participating in good faith in the interactive process.
G. Plaintiff Files a Complaint Against Defendant
On May 1, 2007, plaintiff filed a complaint against defendant for disability discrimination, harassment, retaliation and failure to accommodate in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.). In her discrimination cause of action, she claimed that after she took leave for her eye injury, defendant “treated [her] harshly” by giving her “two performance evaluations that inaccurately and untruthfully portrayed her as an inferior employee.” When she protested, “she was swiftly terminated and offered a token lump-sum payment for her silence.”
In her harassment cause of action, plaintiff claimed defendant harassed her by creating a hostile work environment. Defendant’s conduct included “ignoring or marginalizing plaintiff’s complaints as to race harassment and discrimination, unjustified negative performance evaluations, and terminating Plaintiff after she complained about Defendant’s treatment of her.”
The complaint specifically states that “[d]espite full knowledge of Hiatt’s conduct, Defendant failed to take immediate and appropriate corrective action to prevent the race harassment from continuing.” It does not identify “Hiatt” or the alleged race harassment. Neither does it identify plaintiff’s race.
In her retaliation cause of action, plaintiff alleged that she engaged in protected activity “by complaining about possible race discrimination and harassment by other of Defendant[’s] employees, by taking a period of disability leave due to her disability, and by complaining as to the unfairness of Defendant’s performance evaluation process after repeated incidents of falsehoods and inaccuracies on Plaintiff’s performance evaluations.” In retaliation for her complaints, defendant gave plaintiff “false and damaging performance evaluations” and terminated her.
H. Plaintiff Remains Out on Leave
When Stevenson received no response to his request for a medical report, he notified plaintiff and Lovretovich that plaintiff was required to submit to a medical examination by Dr. Michael Parr on May 15. Following the examination, Dr. Parr notified Lindblom that plaintiff should not return to work for the Fire Department but she was “capable of working for the City of Burbank unimpaired in her usual duties” in another department.
On June 4, plaintiff sent Lindblom an “excuse slip” from Dr. Buttelman stating that she could not return to work until October 1 due to “job related stress and panic attacks.” In response, defendant sent letters to plaintiff and Lovretovich advising plaintiff of available positions as well as available resignation/retirement options. Defendant requested that plaintiff advise defendant by June 15 if she was interested in any of the available positions. If she was not interested in any of the available positions, defendant advised her that if she did not exercise her option to resign or retire by July 6, defendant would apply for her to take a disability retirement.
Plaintiff did not respond by June 15. On June 20, Stevenson spoke to Lovretovich, who stated that plaintiff did not want any of the available jobs because they paid less money than her current position. Lovretovich added that plaintiff would contact Lindblom about a disability retirement. Plaintiff did contact Lindblom, who sent her the information on June 28. Plaintiff did not contact Lindblom after that. On August 3, defendant applied for a disability retirement on plaintiff’s behalf. Lindblom notified plaintiff and Lovretovich of this on August 13. On September 19, Lindblom advised plaintiff that she needed to cooperate with CalPERS in the processing of her disability retirement application or she would be deemed to have waived her right to a disability retirement and resigned her employment.
On April 21, 2008, CalPERS notified defendant that plaintiff had not provided the paperwork necessary for processing her disability retirement. Plaintiff was not terminated but remained employed by defendant.
DISCUSSION
A. Standard of Review
Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) The defendant must “demonstrate that under no hypothesis is there a material factual issue requiring a trial.” (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) The plaintiff may not rely on his or her pleadings to meet this burden (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849), except to the extent they are uncontested by the opposing party (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 626).
In ruling on the motion, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom... in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) “All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment.” (Ibid.)
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) We must identify “the issues framed by the pleadings, determine whether the moving party has negated the nonmoving party’s claims, and determine whether the opposition has demonstrated the existence of a triable issue of material fact.” (Ohton v. Board of Trustees of California State University (2007) 148 Cal.App.4th 749, 763, disapproved on another ground in Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760, 775.) We must uphold the judgment if it is correct on any ground, regardless of the reasons the trial court gave. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) We will reverse the judgment if the trial court has erred, “either in failing to find a triable issue of fact where there is one, or in failing to apply undisputed facts to a correct principle of law.” (Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399, 1401.)
B. Whether a Triable Issue of Material Fact Exists as to Whether Plaintiff Was Subjected to an Adverse Employment Action
To establish a prima facie case of discrimination in violation of FEHA, the employee must show that (1) she was a member of a protected class; (2) she was qualified for the position she held and was performing competently; (3) she suffered an adverse employment action, such as a termination or demotion; and (4) her protected status was a motivating factor for the adverse action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) Once the employee has made a prima facie case of discrimination, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the employment action taken. (Id. at pp. 355-356.) If the employer makes this showing, the burden shifts back to the employee to “‘offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action was untrue or pretextual, or evidence the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude the employer engaged in intentional discrimination.’ [Citations.]” (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807; accord, Guz, supra, at p. 356.)
An adverse employment action “consists of discrimination regarding compensation, terms, conditions, or privileges of employment and disparate treatment in employment, specifically requiring people to work in a discriminatorily hostile or abusive environment.” (Malais v. Los Angeles City Fire Dept. (2007) 150 Cal.App.4th 350, 357; accord, Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) By contrast, “‘[m]inor or relatively trivial adverse actions or conduct by employers o[r] fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.’” (Malais, supra, at p. 357, quoting Yanowitz, supra, at pp. 1054-1055.)
Thus, “‘“[a] change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.”... “‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’... ”’” (Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 357.) A plaintiff claiming she was subjected to an adverse employment action based on discrimination “‘must show the employer’s... actions had a detrimental and substantial effect on the plaintiff’s employment.’” (Id. at p. 358.)
On summary judgment, a moving defendant meets its burden by presenting evidence that plaintiff cannot establish one or more elements of her FEHA claim, or that there was a legitimate, nondiscriminatory reason for the adverse employment action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) Here, the trial court implicitly found as to plaintiff’s cause of action for disability discrimination that defendant met this burden by presenting evidence that plaintiff could not establish that she was subject to an adverse employment action. It further found that plaintiff failed to present evidence raising a triable issue of fact as to this element of her cause of action.
The trial court explained: “In the admissible parts of her declaration submitted in opposition to defendant’s motion for summary judgment, ... plaintiff admits that she took a protracted leave because of her disability, and thereafter was told by Chief Pansini that she was old enough to retire and was offered a new position as a receptionist. When she refused that job, plaintiff asserts that she was thereafter ‘barraged with new projects’ even though she was told that she had to rest her eyes when working on the computer and met with Chief Pansini on April 4, 2006 where she was told that the work station would be relocated so that she could be monitored.”
The trial court found that being “barraged with work” and having her “cubicle... moved so that her actions could be more carefully observed by supervisory employees” did “not rise to a ‘material’ change in the terms, conditions or privileges of employment as is required to demonstrate an adverse employment action.” The court also noted plaintiff was still employed by defendant and continued to accrue wage increases “despite having not gone to work in more than 26 months.” Additionally, “plaintiff did not receive any adverse performance evaluations after returning from disability. The rating given [plaintiff] for the period following her return from leave was as high as any she’d received in her twenty years of employment.”
On appeal, plaintiff relies on the principle that, in determining whether a plaintiff has been subject to an adverse employment action, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1055.) Plaintiff claims that defendant’s actions after her return from disability leave-including the delay in providing her with equipment to accommodate her disability, the “barrage” of work, and requiring her to move her workspace-constituted an adverse employment action, as described above.
In support of her claim, plaintiff relies on Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359. In Horsford, one plaintiff, a police lieutenant, was removed from his position near the top of his department’s chain of command, then removed from his law enforcement duties and transferred to a position for which he had no training or expertise and in which, inferably, he was expected to fail. Another plaintiff was removed from a highly desirable position as an investigator, unjustifiably placed on administrative leave for an excessively long period of time, then returned to his duties. The court concluded the defendant’s actions as to both employees constituted adverse employment actions. (Id. at p. 374.)
Horsford does not support plaintiff’s position. After her leave, plaintiff was returned to her former position, with the same duties, at the same rate of pay (with the pay increases accruing to employees in her pay grade). There is no comparison between plaintiff’s situation and those of the employees in Horsford.
We agree with the trial court that the actions of which plaintiff complains are merely “‘[m]inor or relatively trivial adverse actions or conduct by employers o[r] fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment.’” (Malais v. Los Angeles City Fire Dept., supra, 150 Cal.App.4th at p. 357; accord, Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1052.) Thus, plaintiff failed to establish a triable issue of material fact as to whether she was subject to an adverse employment action.
Absent an adverse employment action, plaintiff has no cause of action for harassment in violation of FEHA. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 355.) Neither does she have a cause of action for retaliation under FEHA. (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1052.)
C. Whether a Triable Issue of Material Fact Exists as to Whether Plaintiff Was Subjected to Harassment
To establish a prima facie case of harassment, plaintiff must show by admissible evidence that she was subjected to unwelcome comments or conduct, that the harassment was based on her membership in a protected class, and that the harassment was so severe or pervasive as to “‘alter the conditions of [the victim’s] employment and create an abusive working environment.’” (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57, 67 [106 S.Ct. 2399, 91 L.Ed.2d 49]; accord, Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21 [114 S.Ct. 367, 126 L.Ed.2d 295]; Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.) Plaintiff must show that her work environment was “permeated with ‘discriminatory intimidation, ridicule, and insult.’” (Harris, supra, at p. 21.)
In order to show a pervasive environment of harassment, plaintiff must “show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610; accord, Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 131.) The “acts of harassment cannot be occasional, isolated, sporadic, or trivial.” (Fisher, supra, at p. 610; accord, Aguilar, supra, at p. 131.) Additionally, plaintiff must show not only that she was offended but that the harassment was severe enough to have affected a reasonable employee’s work performance and “seriously affected the psychological well-being of a reasonable employee.” (Fisher, supra, at pp. 609-610; see also Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at p. 284.)
In order “to determine whether an environment is sufficiently hostile or abusive” to constitute harassment, we “‘look[] at all the circumstances, ’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work or performance.’ [Citation.]” (Faragher v. Boca Raton (1998) 524 U.S. 775, 787-788 [118 S.Ct. 2275, 141 L.Ed.2d 662].) “‘[S]imple teasing, ’ [citation], offhand comments, and isolated incidents (unless extremely serious)’” are insufficient. (Id. at p. 788.)
As with plaintiff’s cause of action for disability discrimination, the trial court implicitly found that defendant met its burden of presenting evidence demonstrating that plaintiff could not establish one or more elements of her cause of action. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) The trial court found that “[t]he same dearth of evidence cited in the... discussion [as to her disability discrimination cause of action] is fatal to plaintiff’s claim here.”
The trial court characterized plaintiff’s claims of harassment as “[t]rivial acts” and “teasing.” It found “no evidence that plaintiff experienced ‘harassment’ due to her disability such that it altered the conditions of her employment and created an abusive work environment.”
Plaintiff claims that she “experienced multiple acts of harassment because of her disability by her supervisors and co-workers for almost two years that was both severe and pervasive.” The only specific acts of harassment she identifies in her argument, however, are that “Chief Trowbridge would consistently make harassing comments about her eye and asking her if she was seeing [two] of him.”
In her statement of facts, to which she refers, she identifies three comments which she characterizes as harassment. One is the comment above by Trowbridge. The second is a question by Trowbridge as to how many fingers he was holding up. The third is one made by Mirzayans, on plaintiff’s first day back at work: Mirzayans “made this exaggerated jump back, arms out front, ‘Oh! Double vision! Don’t want you to run into me!’” Plaintiff also identifies as harassment questions by Trowbridge as to whether she was making mistakes because of her eye.
We agree with the trial court that the three comments over a period of about two years that plaintiff identifies as harassment, while they may have been offensive, constituted no more than teasing or isolated incidents. We do not perceive as harassment Trowbridge’s questions regarding the reason for plaintiff’s mistakes. This was a legitimate workplace concern. Hence, plaintiff’s evidence failed to establish a triable issue of fact as to her cause of action for harassment.
Plaintiff does not argue that her evidence created a triable issue of fact as to race harassment, and we deem any such claim to be waived. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
D. Whether a Triable Issue of Fact Exists as to Failure to Accommodate
FEHA imposes on an employer who knows of an employee’s disability an affirmative duty to make reasonable accommodation for that disability. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.) Under FEHA, “‘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.” (Gov. Code, § 12926, subd. (n).) However, an “employer is not obligated to choose the best accommodation or the accommodation the employee seeks.” (Hanson, supra, at p. 228.) All that is required is that the employer provide reasonable and effective accommodation. (Ibid.)
FEHA also requires an employer to engage in an interactive process with an employee with a disability “to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee... with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n).) This “‘“interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees” with the goal of “identify[ing] an accommodation that allows the employee to perform the job effectively.”’” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984.) Both employer and employee have the duty to engage in the interactive process in good faith. (Id. at pp. 984-985.)
The trial court found that defendant met its burden on summary judgment (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843) by producing “unrebutted evidence that it offered reasonable accommodations to plaintiff and that it responded to plaintiff’s requests for reasonable accommodations. It is uncontroverted that [defendant] did engage in the interactive process and did reach an accommodation by providing plaintiff with a modified work station that allowed her to organize her work and place her computer at an angle to the right. [Defendant] did purchase a glare screen and did purchase a document holder so that she would not be required to gaze left or down. Plaintiff was allowed to perform more than half of her work in tasks other than computer work and she was instructed to look away and rest her eyes when needed. This process fully responded to the concerns articulated in plaintiff’s physician’s report. Thereafter, [plaintiff] never returned to see her eye doctor and no further restrictions or limitations, or requests for accommodation were received by [defendant].”
On appeal, plaintiff does not challenge the trial court’s findings as to the accommodations defendant provided for plaintiff. Rather, she claims the trial court ignored her “undisputed evidence that [defendant] failed in its continuing duty to engage in the interactive process.” She argues that she “was promised at an interactive job meeting prior to her return that her job duties would be ‘no more no less’ than what was articulated in the Job Analysis. She relied on this Job Analysis when deciding whether she could return to work. However, when she did return to work, she was told that she would be doing job duties outside and over and beyond the Job Analysis. When she complained that she could not perform these duties because of her disability, [defendant] does not dispute that it failed to engage in any type of continuing interactive process but instead simply ignored her requests.”
Assuming arguendo the admissibility of plaintiff’s evidence concerning the Job Analysis, her complaint regarding the Job Analysis was that it stated that “she was to devote 100% of her time working for the Disaster Preparedness Coordinator.... Unfortunately, when she returned to work, she was told to spend 50% of her time working for the Battalion Training Chief and the other 50% of her time working for the Disaster Preparedness Coordinator.” Plaintiff told Mehling “that both divisions are extremely demanding and that she could not perform both task[s] given her medical condition, especially since the Battalion Training Chief required her to work at the computer for the vast percentage of her workday.” Neither Mehling nor any other supervisor responded to her complaints.
Plaintiff presented no evidence that requiring her to work for only one division, as opposed to dividing her time equally between two divisions, was required as an accommodation for her disability. Dr. Gellerman only stated that because of her condition, plaintiff “is limited to tasks involving close work and reading. She has difficulty with any tasks that are to the left or in down gaze. She needs good lighting to minimize her symptoms. Her computer needs to be situated to the right, and she would need frequent breaks because she has difficulties with convergence and accommodations due to her strabismus problem.” Plaintiff does not contend that defendant failed to provide reasonable accommodations to address Dr. Gellerman’s concerns. Neither did she return to him and get another letter from him stating that additional accommodations were needed.
Additionally, in July 2005, Pansini offered plaintiff the chance to transfer to a downstairs counter position without a pay cut. Plaintiff did not accept the offer. The offer to reassign plaintiff to a vacant position that would not strain her eye qualifies as reasonable accommodation. (Gov. Code, § 12926, subd. (n).) That plaintiff did not want the position does not negate this. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 228.)
In summary, plaintiff failed to present evidence showing that defendant failed to offer reasonable accommodation or to engage in the interactive process in good faith. She thus did not establish a triable issue of material fact as to her cause of action for failure to accommodate.
E. Evidentiary Rulings
The trial court sustained defendant’s objections to portions of plaintiff’s declaration which referred to events occurring more than one year before she filed her complaint with the DFEH on April 7, 2006. It explained that she could not base her lawsuit on these events, as they fell outside the one-year statute of limitations contained in Government Code section 12960, subdivision (d).
It also sustained objections based on hearsay, the best evidence rule, and lack of foundation. These applied to portions of plaintiff’s declaration in which she related what other people said, what was contained in documents, and discussed her medical condition.
We need not resolve the question whether the trial court’s evidentiary rulings were correct. There is nothing in the excluded evidence which would compel a different result.
We note, however, that none of the actions taken more than one year before plaintiff filed her DFEH complaint constituted an adverse employment action or demonstrated harassment based on disability. They are not sufficiently similar to the later actions of which plaintiff complains to demonstrate a retaliatory course of conduct or pattern of harassment. (See Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at pp. 1058-1059; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)
Additionally, as discussed above, plaintiff’s complaints about her job assignment upon her return from leave differing from that in the Job Analysis do not establish a failure to accommodate. Thus, evidence of plaintiff’s interpretation of the Job Analysis and discussions concerning it would avail her nothing.
F. Nazir
In a supplemental brief, plaintiff cites the recent opinion in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 in support of her claims of evidentiary error and the existence of triable issues of material fact. Her reliance on Nazir is misplaced.
In Nazir, the court criticized the “girth” of the papers submitted on the summary judgment motion, the inappropriateness of papers submitted, and “the misleading picture those papers presented.” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at pp. 252-253.) It also criticized the trial court’s ruling on the over-700 evidentiary objections, stating: “It is true that the trial court ‘ruled, ’ however conclusorily, that all objections save one were sustained. This is hardly a ruling, as it could not provide any meaningful basis for review.” (Id. at p. 255.) Additionally, the court observed “that many employment cases present issues of intent, and motive, and hostile working environment, issues not determinable on paper. Such cases, we caution, are rarely appropriate for disposition on summary judgment....” (Id. at p. 286.)
In this case, like Nazir, a voluminous amount of paperwork was submitted by defendant in support of its summary judgment motion, with hundreds of facts listed in the separate statement of facts as to each cause of action. Also, like Nazir, in ruling on defendant’s objections to plaintiff’s evidence-a reasonable number of objections, we might add-the trial court explained its rulings as to the objections to two paragraphs of plaintiff’s declaration, sustaining the other objections without explanation. None of this mandates reversal of the summary judgment, however.
As alluded to in Nazir, if plaintiff believed that defendant’s paperwork was improper or that it was “‘a deliberate, patent effort at obfuscation intended to overwhelm the trial judge charged with responsibility to determine fairly and impartially whether triable issues of fact exist, ’” she could have made a motion for sanctions under Code of Civil Procedure section 128.5. (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 284.) She has failed to demonstrate on appeal that defendant’s paperwork presented a “misleading picture” of the facts which led to an erroneous grant of summary judgment. (Ibid.)
DISPOSITION
The judgment is affirmed. Defendant is to recover its costs on appeal.
We concur: WOODS, Acting P. J.ZELON, J.