Opinion
NOT TO BE PUBLISHED
Monterey County Super.Ct. No. M85528
Duffy, J.
Maureen deSaulles sued her former employer, Community Hospital of the Monterey Peninsula (Hospital), alleging a cause of action for failure to accommodate her disability or medical condition under the California Fair Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) and other employment-related claims sounding in tort and contract. Before becoming employed by Hospital as a registrar, deSaulles had suffered from cancer and had undergone a bone marrow transplant that left her with a compromised immune system. According to her doctor, this affected her ability to be in direct contact with anyone, including hospital patients, who was suffering from an acute viral, bacterial, or fungal infection.
Further statutory references are to the Government Code unless otherwise stated.
The trial court summarily adjudicated deSaulles’s failure-to-accommodate claim in favor of Hospital. Consistently with that ruling, at trial, the court granted Hospital’s in limine motion excluding evidence and argument that Hospital had failed to accommodate deSaulles. Then, as a result of its in limine ruling excluding such evidence, the court dispositively ruled against deSaulles on the merits—as a matter of law and before the taking of evidence—on her related claims for retaliation, intentional and negligent infliction of emotional distress, and wrongful termination in violation of public policy, effectively dismissing these causes of action. In the wake of that ruling, the parties settled deSaulles’s contract claims, and entry of judgment against her followed.
deSaulles appeals, contending, among other things, that triable issues of material fact precluded summary adjudication of her failure-to-accommodate claim and that this erroneous determination also infected the court’s later disposition at trial of her related tort and statutory claims. She alternatively contends that these remaining claims should have been tried in any event—notwithstanding summary adjudication of her failure-to-accommodate claim—because the temporal scope of those claims exceeded what had been adjudicated, leaving intact allegations of Hospital’s actionable conduct that should have been subjected to the evidentiary processes of trial. We reject these contentions and affirm the judgment.
STATEMENT OF THE CASE
We take the facts from the evidence submitted by both parties in connection with Hospital’s motion for summary judgment or adjudication, as well as additional evidence offered by deSaulles in her later motions for reconsideration and new trial. The court reconsidered its prior ruling, but affirmed it, which makes the new evidence properly part of the record for our purposes as though it had been submitted in the first instance in connection with the initial motion for summary judgment or adjudication.
A. Hospital Facility, The Registrar Position, and Patient Contact
In early 2005, deSaulles interviewed with Hospital for a per diem position as a night inpatient registrar within Hospital’s Patient Business Services department.
A Hospital per diem employee does not receive benefits. According to deSaulles, per Hospital’s employee handbook, a per diem employee is scheduled for 39 or less hours in a two-week period, and the employee is able to pick up additional shifts as he or she wishes. Hospital’s written policy on per diem employees provided in 2005 that they “ ‘are regularly scheduled to work 39 hours or less per two week pay period. Per diem employees[’] work schedules may be fixed or may vary based on the staffing needs of the department and at the discretion of the department manager or supervisor.’ ” But this policy changed during deSaulles’s employment and the new policy allowed “per diem employees to be scheduled up to 80 hours per pay period with an additional [pay] differential for hours worked over 39 hours per pay period.”
Hospital is an acute care facility “that provides services to patients who suffer from viral, bacterial, and fungal infections. Patients who suffer from such illnesses are located throughout the hospital. Such patients enter and exit the hospital, are transferred between rooms, and utilize common areas that all employees use, such as hallways, waiting areas, and restrooms. [Hospital] serves patients throughout the year and, during certain parts of the year, such as December and January, there is an elevated number of [infectious] patients in the hospital, including elderly people and people with weakened immune systems, who are particularly and severely impacted by viruses.” But Hospital does have a written policy of denying admission to patients with “virulent infectious diseases” because it cannot provide suitable or adequate isolation for such patients. Were a patient to present with a virulent infectious disease, whether to the emergency room or otherwise, Hospital would make efforts to transfer the patient to another hospital with appropriate isolation facilities.
According to Terril Lowe, Hospital’s Vice President of Nursing, “all individuals who work within [Hospital] are subject to contact with individuals who suffer from viral, bacterial, and fungal infections. An individual with a weakened immune system, who cannot safely work in areas that put her into contact with patients who have viral, bacterial, or fungal infections, cannot safely work [at Hospital]. That individual would come into contact with infectious patients simply by using hospital facilities and would therefore be likely to be injured by working in the hospital.” Further according to Lowe, it “is not always possible to identify patients who suffer from viral, bacterial, or fungal infections when they enter the hospital. Such patients often come to the hospital not knowing the disease or illness they suffer from. Sometimes, patients come in for a noninfectious condition and are unaware that they have a viral, bacterial, or fungal infection. It also can take time, sometimes 24 hours or longer, to diagnose such diseases. Additionally, patients who are sick and have weakened immune systems can develop such diseases after they enter the hospital. Accordingly, identifying a patient with such infections can be difficult and cannot always be done at the time the patient enters the hospital.” Further according to Lowe, an “acute” infection is generally distinguished by clinicians from one that is chronic, in that the condition is shorter term and immediate as opposed to one that is ongoing and expected to be long term. Both types of infections can be contagious depending on what the infection is. “Acute” can also sometimes, but not necessarily, be used to denote the severity of a condition or infection.
According to Sharon Griffin, Hospital’s Director of Patient Access, “it is not always possible to know when a patient suffers from an acute viral, bacterial, or fungal infection” and when a patient is registered at Hospital, it is only the “presenting complaint [that] is available for the registrar to review. A diagnosis by a health care provider usually does not take place until after the patient is registered.” Moreover, “patients often come to the hospital with a symptom or medical complaint but are unaware of the actual illness or disease they suffer from. Thus, at the time a patient is registered, the patient could have an acute viral, bacterial, or fungal infection that is undiagnosed and not described on the presenting complaint.”
A registrar position requires the employee to register patients being admitted to the hospital, among other duties. According to Griffin, Hospital’s Director of Patient Access, “[i]nteraction and contact with patients is an important and necessary part of a registrar’s job.” According to the written summary job description of the registrar position that existed in 2005, the accuracy of which deSaulles did not dispute, registrars “perform registration/transfer/discharge functions. The registrar is responsible for entering complete and accurate data utilizing computer technology for admission, transfers and discharges. The registrar is required to interview and gather information from the patient, doctor’s office, insurance company and government agencies. Registrars are required to obtain necessary signatures on financial documents.” The job activity requirements include that hearing be “correctable to achieve the ability to hear and understand voices in person and over the telephone.” While the job summary does not expressly state that direct patient contact is required, for Hospital, it was “assumed” and “common knowledge” that patient registration requires face-to-face patient contact, obviating the need for this to be expressly stated.
Because patient registration happens in several locations within the hospital depending on the circumstances of admission, registrars work in different areas of the hospital and some have requirements or functions that are unique to that area and that also may vary by shift. For example, an “Admission Services Registrar” is required to demonstrate job competence in the “ability to interview patients in Admission Services to obtain/verify required registration information, collect copy of insurance cards, to complete ethnicity and race information, and present Hospital Admission Agreement form for signing.” And a “Census Registrar” is required to show job competence by “verif[ying] and mak[ing] appropriate corrections to the bed census prior to midnight.” They do not “typically” work in the emergency room but it was possible when working census for a registrar to go to patients’ rooms to register them and to work in the Arcade, which is Hospital’s outpatient registration area, even if the shift did not require working in the emergency room. Further according to Griffin, registrars “meet with patients in the ‘Arcade’ area of the Main Hospital and in the Emergency Department, and they go to patients’ rooms to register” them and provide information. Registrars “are required to interview and gather information from patients, place identification wristbands on patients, and are required to obtain necessary signatures from patients on financial documents.” They are also required to “provide patients with information and documentation about billing issues and other issues concerning their stay in the hospital. It is important for a registrar to meet face to face with patients” in order to perform these functions. Face-to-face meetings are also important “because a registrar is able to obtain the most accurate information and is best able to explain hospital documentation in face-to-face meetings” and such contact is necessary to “promote the caring human touch” that Hospital wished to convey. Even though the duties of registrars vary depending on the location and shift to which they are assigned, according to Hospital, all registrars must be able to have direct contact with all types of patients as an essential function of the job of registering them, even if the registrar was not assigned to the emergency room because he or she hadn’t yet been trained there or because he or she preferred to avoid working in the emergency room, which was the case for one registrar on the evening shift. While registrars received general safety training, they were not given special training in dealing with infectious patients.
According to deSaulles, because the actual duties of a registrar vary depending on what station he or she is assigned to for a particular shift, not all registrar positions actually required direct contact with people or patients. For example, a night inpatient registrar does not have contact with outside doctors’ offices, and when working in the back office, the registrar does not interview and gather information from patients. One night inpatient registrar who worked two nights in January 2006 did not leave the back office and had no contact with patients, and the supervisor, who was also stationed in the office, worked in the emergency room when that was required during the two shifts. Another registrar was required to have direct patient contact in patients’ rooms and in the Arcade, even though she was not assigned to the emergency room, not having yet been trained there, and the supervisor covered that area during her shifts. And when a patient was admitted directly through the emergency room, deSaulles, as a night inpatient registrar, would be contacted by phone in the back office so she could enter information in the computer system about what area, room, and bed the patient was assigned to. In that instance, a tube system was used for the transfer of admission documents and it was not necessary for deSaulles to have direct patient contact. And if a patient is registered at bedside due to trauma, for example, a nurse may be called upon to place the wristband on the patient instead of the registrar. One registrar regularly worked the evening shift in census and never left the back office to work in the emergency room during these shifts. deSaulles had the same experience when she worked census.
But as deSaulles was told when interviewing for the registrar position, patient contact and interaction is an important part of the job and night inpatient registrars are required to work, when necessary, in the emergency room in order to relieve other registrars working there and when hospital needs dictate it. This is required during night shifts more frequently than day or evening shifts because there is low staffing of registrars in other areas of the hospital and because the emergency room is the busiest area of the hospital during night hours. Additionally, Hospital had a plan to remodel its emergency department and, as part of that, the workstations for all night shift registrars were going to be relocated there. According to deSaulles, she was told in her initial interview that the night shift, inpatient registrar position required work in a back office but would also require “only occasional shifts” in the emergency room, where she also was trained. Her availability to work was mostly limited to night shifts (11:00 p.m. to 7:30 a.m.), as she informed Hospital, because she had a young child with whom she wished to stay at home during the day when her husband was at work. But she occasionally worked evening shifts (2:30 p.m. to 11:00 p.m.) even though doing so negatively impacted her and required her to secure child care. According to deSaulles, she informed Hospital during her pre-employment interview that in seeking employment, she was interested in picking up a few night shifts, mostly on the weekends, and she could not work more than three days per week, or five in a two-week pay period. She was told that her scheduling limitations could be accommodated but, as a per diem employee, that she would have the option of picking up extra shifts if she so desired.
B. deSaulles’s Employment at Hospital
deSaulles began her employment as a per diem registrar for Hospital in March 2005, working night inpatient shifts with coverage in the emergency room as well. Some five years before, she had been diagnosed with and treated for cancer, which required a bone marrow transplant that left her immune system vulnerable. Before accepting a position with Hospital, she informed her own oncologist that the position involved registering patients and required “occasional patient contact” throughout the hospital, including the emergency room. Her doctor told her that occasional shifts in the emergency room “would be fine.” deSaulles did not tell Hospital of her medical history or condition before beginning her employment, other than to mention it to a medical screener. But deSaulles considered herself to have a disability in that her immune system remained compromised and she could not have contact with people who were “infectious, ” meaning people suffering from the flu or viruses that she could catch.
According to deSaulles, her night shifts did not generally involve contact with patients other than in the emergency room. Her duties mostly involved doing reports, answering the phone, filing, and data entry in a back office. When working in the emergency room, she registered patients, interviewed them from across a desk, obtained their information, put wrist bands on them, completed their paperwork, and admitted them. Her work in the emergency room would generally consume about an hour of her shift. There was initially one other registrar working the same night shift but stationed for the shift in the emergency room, and deSaulles would relieve her on breaks. deSaulles was also sent to the emergency room when it got busy. But at some point around May 2005, a supervising registrar was added to the shift as well and that person worked in the back office with deSaulles and began to schedule her more frequently in the emergency room to cover shifts there. Sometimes, the two night shift, inpatient registrars and the supervisor were required to work in the emergency room because of demand. deSaulles was never asked to register patients in the Arcade area of the hospital but she did sometimes work in Admission Services, where she was sometimes required to go to patients’ rooms to have them sign documents.
C. deSaulles’s Grievance
By around August of 2005, deSaulles’s standard schedule consisted of Sunday and Monday nights but she was also scheduled on other shifts, to the point of excess in her view. On October 13, 2005, after previously but unsuccessfully raising the issue more informally, deSaulles submitted a “formal grievance, ” in the form of a letter directed to Joseph Haney, Hospital’s Director of Patient Business Services, and Joanne Webster, its Director of Human Resources. The letter primarily complained that deSaulles had been excessively scheduled, contrary to what she had been told in her interview and contrary to what, according to deSaulles, the employee handbook provided for per diem employees. Instead of working 39 hours or less per pay period, she had averaged 57.5 hours during every pay period, working all shifts as she was scheduled. She insisted that she not be scheduled for more than 39 hours per pay period, and that her schedule be limited to Friday, Saturday, and Sunday nights only. She also complained of being subjected to “unreasonable holiday scheduling” as she had worked “every full premium holiday weekend” since starting her job in March, including “four consecutive shifts on each of the Easter, Memorial Day, Fourth of July, and Labor Day weekends.” (Bold and underlining emphasis omitted in first quote.) She had submitted requests for leave on Thanksgiving and Christmas five months in advance and had been denied the request for Christmas.
When deSaulles verbally complained of being excessively scheduled, she was told that the hospital was understaffed but was planning on opening up more positions. She asked to receive benefits as a regular part-time employee if she was going to be regularly scheduled more than the 39 hours per pay period of a per diem employee. She was later informed of an open part time position that she might qualify for but it involved too many hours and she did not pursue it.
Also included in deSaulles’s written grievance was her complaint about having to work shifts in the emergency room. She pointed out that she had been told in her interview that she may have to work occasional shifts there but that she had been scheduled to work in the emergency room with increasing frequency such that she had worked there five of the last six shifts. She first objected to working in the emergency room because she had “never been trained to deal with dangerous criminals or mentally ill patients and, as a result, [she felt] uncomfortable and unequipped to handle [such] challenges.” She noted a “recent attack on a nurse in the ER by a mentally unstable patient, ” which had “opened her eyes to the danger of the emergency room environment” and made her feel “not secure” and “unsafe.”
She also stated her concern that “medical treatment [she had] undergone in the past [had] rendered [her] more susceptible to communicable illnesses the more [she was] placed in [that] area.” She did not specify her medical condition or disability or mention that she had suffered from cancer and was still disabled as a result of the after effects of treatment. But she said that on four separate occasions, she had fallen ill immediately following a shift in the emergency room. And she finally observed that she had been “confronted with shocking and traumatic experiences such as gaping wounds, mentally ill patients and tragic loss—each of which [she found] stressful and extremely taxing emotionally.” deSaulles relayed that after “two consecutive last-minute reassignments to the ER from her standardized scheduled [inpatient] shift, ” she had requested that she not be scheduled in the emergency room but was told by her supervisor that she was the most qualified registrar to work there and she was scheduled there for three more consecutive shifts. As a result, deSaulles formally requested that she no longer be required to work in the emergency room out of concerns for her “physical and emotional well being.”
In conclusion, deSaulles’s grievance notified Hospital that if they could not agree to a formal resolution of the issues raised by her letter, that she had “every intention of bringing in the Caregivers and Healthcare Employees Union... to organize and address [Hospital’s] ongoing unfair treatment of nonprofessional employees such as” herself. (Bold emphasis omitted.)
D. Hospital’s Response
Joe Haney responded to deSaulles’s grievance by memo dated October 27, 2005. With respect to scheduling, he stated his belief that there had been confusion over deSaulles’s availability to work. He also pointed out that she had expressed a desire for additional shifts and had wanted to become a benefited part-time employee based on her requests on multiple occasions and her indication at one point that she would like to be scheduled to work seven to eight days per pay period in varied positions, including in the emergency room. Haney acknowledged deSaulles’s different request to be scheduled no more than 39 hours per pay period but stated that Hospital could not guarantee that this request would be honored as there was a “responsibility to schedule in order to meet the needs of this hospital and [its] patients, ” as had been repeatedly explained to deSaulles.
With respect to work on holidays, Haney expressed appreciation for deSaulles’s past availability but noted that Hospital had been unable to approve her request for Christmas off due to scheduling conflicts. However, one of deSaulles’s co-workers had volunteered to work on Christmas such that Hospital was then in a position to approve deSaulles’s requested leave from December 23 through December 25 returning to work for the night shift on December 26 and also working the following night as well.
With respect to deSaulles’s objection to working in the emergency room, Haney noted that Patient Business Services Admitting and Registration had many areas of responsibility, including in the emergency department, and it was Hospital’s “responsibility to schedule and staff to meet the needs of the hospital and patients.” He said that deSaulles had indicated on her employment application that her only restriction was that she could not work day shifts and that on her schedule preference sheet, one of her preferences had included emergency registration. Based on her grievance, it appeared that deSaulles had changed her mind and was no longer interested in working as an emergency registrar. He said that Hospital was unable to accommodate this request “as it is necessary for the night shift employees to work in all areas.” Haney did not respond to deSaulles’s request not to work in the emergency room based on her unspecified past medical treatment and her asserted resulting vulnerability to getting sick. And these general statements by deSaulles did not signify to Hospital that she was claiming that she had a disability or medical condition that required accommodation under FEHA.
E. deSaulles’s First Appeal of Her Grievance
Frustrated by Haney’s response to her grievance, deSaulles submitted her “First Appeal to Disposition of Grievance” to Laura Zehm, Hospital’s Vice President and CFO, on or about November 10, 2005. In it, deSaulles reiterated her charge of Hospital’s “gross misuse of per diem employees” by the Patient Business Services department. She explained that she had requested a benefited part-time position only because she was being compelled to work in excess of 39 hours per pay period anyway.
The record also contains evidence that in April and May 2005, deSaulles expressed interest in a part-time position and in working seven to eight days per pay period. But in June 2005, deSaulles declined a part-time benefited position because it required her to work evenings instead of nights.
With respect to her request for leave at Christmas, deSaulles objected to having to work another day, December 27, in order to have Christmas day off and stated her intention to be out of town for seven days at Christmas, during which she would be unable to work. She characterized as “suspect” the conditional granting of her request for leave immediately after she had filed a grievance and communicated her intent to seek union representation.
With respect to her objection to working in the emergency room, deSaulles observed that Haney had not addressed her specific concerns and that the application and job listing for her position had not mentioned working in the emergency room. While she was told in her initial interview that she would be trained for working in the emergency room, she said she had raised a concern about this, “having recently recovered from a tough battle with cancer that culminated in a bone marrow transplant.” deSaulles also said that before accepting the position, she had consulted with her oncologist about whether an emergency room was a safe environment for her to work in and she was told that occasional shifts there would not be a problem. deSaulles said that she was assured by her interviewer that she would not be forced to work in the emergency room if she was uncomfortable there. deSaulles reiterated that as she was scheduled in the emergency room with increasing frequency, she became ill and that due to her compromised immune system, it was unsafe for her to continue to do so. She also again raised concern about her lack of training to work around “the hazards inherent in the ER, such as managing the stress of tragedy or dealing with mentally ill patients” and she complained that despite her having raised concerns about her health and safety, Haney had summarily denied her “request to no longer be assigned in the ER—without any proper explanation.”
It is undisputed that deSaulles did not inform Hospital that her medical condition or disability was cancer-related until this first appeal of her grievance on or about November 10, 2005.
deSaulles finally accused Hospital of retaliating against her by continuing to schedule her in the emergency room and requiring her to work on December 27th in order to be granted holiday leave.
F. Hospital’s Response to deSaulles’s First Appeal of Her Grievance
Zehm responded to deSaulles’s first appeal of her grievance by setting up a meeting with deSaulles eight days later on November 18, 2005. Present at the meeting were deSaulles, her husband, Zehm, and Mary Goodby, a Hospital human resource representative. deSaulles reiterated at the meeting that she did not want to work in the emergency department “because of concerns for her physical safety and because she had a compromised immune system that caused her to become sick if she worked around ill people.” Goodby told deSaulles that if she were to provide a medical certification from her doctor indicating her medical restrictions, Hospital could review it to determine if any accommodations were possible. This was the Hospital’s first request for a note from her doctor, which was its written policy when faced with an employee’s request for accommodation, and it came eight days after deSaulles first disclosed that her disability or medical condition was related to her past cancer treatment. Because Hospital is an acute care facility, upon learning the specific nature of her disability, Zehm was concerned that deSaulles’s “compromised immune system and the limitations that result from that disability, would be very difficult to accommodate.”
In addition to meeting with deSaulles, Zehm prepared a written response to deSaulles’s first appeal of her grievance. In it, Zehm highlighted what she perceived as confusion over deSaulles’s schedule, noting inconsistencies in deSaulles’s expressed schedule preferences and concluding that deSaulles had changed her mind on several occasions despite Hospital’s efforts to accommodate her scheduling wishes. Zehm also noted that as a per diem employee, deSaulles was receiving extra pay in lieu of benefits and was also receiving a pay differential for working night shifts. Zehm emphasized the needs of the hospital in scheduling and pointed out that Hospital’s personnel manual stressed that work hours may vary depending on workload activity. But she said that deSaulles’s complaints had caused her to review staffing and recommend the hiring of an additional per diem employee on the night shift.
With respect to deSaulles’s request for holiday leave, Zehm said that she had reviewed the written request, which had specified deSaulles’s last day of work as December 22 and her return to work on December 26, the very days that had been granted despite deSaulles’s later indication that she would be out of town and unable to work for a full seven days.
As to deSaulles’s request not to work in the emergency room, Zehm reiterated that scheduling is based on staffing needs and that the night registrar position entails sometimes working in the emergency department, the busiest area of the hospital during those hours. Zehm observed that a review of deSaulles’s schedule showed that she had not worked in the emergency room an inordinate number of times—43 of 116 shifts, sometimes only for a portion of the shift. Zehm acknowledged deSaulles’s previous statement that her doctor had approved her working there occasionally but stated to deSaulles, as she had in the meeting that same day, “If you are claiming that you have a disability that prevents you from working in the emergency room on a regular basis and that you need a reasonable accommodation, please provide us with a letter from your physician explaining the reason for the need and the work restrictions your physician recommends.”
G. deSaulles’s Second Appeal of Her Grievance and Hospital’s Response
deSaulles did not arrange to obtain a note from her doctor as a result of the November 20 meeting and letter from Zehm. Instead, on December 5, 2005, she submitted her written “Second Appeal to Disposition of Grievance & Request For reasonable Accommodation of Disability” to Steven Packer, M.D., Hospital’s President and CEO. In it, she again complained about her work schedule as a per diem employee being in excess of 39 hours per pay period. And she said, “[M]y health status makes it extremely dangerous for me to continue to work in the Emergency Room. Further, my medical history qualifies me as disabled under the Fair Employment and Housing Act. Since nobody has made any reasonable attempt to address my personal medical concerns, I would like to meet and engage in an interactive dialogue to determine how [Hospital] can best accommodate my disability. As I have again been scheduled to work in the ER on December 20, 2005, I consider this an urgent matter that needs to be addressed prior to that date. I am willing to sign a release ASAP allowing you to obtain all of my medical records from USC Norris Comprehensive Cancer Center in Los Angeles, where I have been treated for the past five years. I look forward to working with staff to find a reasonable accommodation.” [Original bold and underlining emphasis omitted.] deSaulles finally again asserted her belief that she was being retaliated against for raising these issues or threatening to organize a labor union and that Hospital’s continued scheduling her to work in excess of 39 hours per pay period, or alternately demanding that she find a replacement, and scheduling her in the emergency room constituted the retaliatory acts.
At that point, deSaulles believed that “contagious patients in the emergency room” were causing her to become ill, which made her very fearful of “a major setback in [her] recovery” from her bone marrow transplant. But she had not obtained a medical opinion that suggested or verified this perceived danger.
deSaulles’s second appeal of her grievance prompted Dr. Packer to meet with deSaulles, her husband, and Mary Goodby on December 20, 2005. The discussion involved some specific aspects of deSaulles’s medical condition and Dr. Packer reiterated Hospital’s need for a note from deSaulles’s doctor. In response, deSaulles explained that her doctor was in Los Angeles, making it logistically difficult for her to get a note. Dr. Packer offered to have deSaulles see a local doctor at Hospital’s expense in order to spare her the trip and deSaulles said she would get back to him about that. Dr. Packer also took deSaulles off her scheduled shift in the emergency room on December 20 and said she would not be penalized for that, even though Hospital was short staffed with another employee on leave and was required to pay overtime to cover the shift.
On December 23, 2005, Dr. Packer wrote a formal response to deSaulles’s second appeal of her grievance. The letter summarized key points from the December 20 meeting from Dr. Packer’s perspective and provided additional follow up. He referred to deSaulles’s initial grievance and distinguished “more recent issues [she had] raised regarding accommodation for disability and potential retaliation.” On her request for accommodation, Dr. Packer echoed that “the most expeditious and definitive way for [Hospital] to be able to engage in an interactive dialogue for a workplace accommodation is for you to provide a letter from your treating physician outlining the extent and nature of the work restrictions. This procedure is outlined in our Personnel Manual policy 512. [¶] During our meeting you indicated that it would be logistically very difficult for you to obtain a letter from your treating physician given his location in Los Angeles, the fact that you have not seen him in five months, and his unwillingness to write a letter in the absence of a concurrent exam. It remains our position that a letter from the treating physician is the preferred method for beginning our interactive consideration for reasonable accommodation.” Dr. Packer then expressed his willingness to make an exception to allow instead for “an independent evaluation by an occupational medical specialist.” Because this was an exception to Hospital’s policy, Dr. Packer required a letter from deSaulles indicating her “desire to forego certification by [her] own treating physician and requesting that the hospital arrange for an independent disability evaluation” and he said that Hospital’s human resources department would work with deSaulles to identify appropriate accommodations upon receipt of the evaluation.
Dr. Packer acknowledged deSaulles’s request not to be scheduled in the emergency room and her observation that another registrar in Patient Business Services was not required to work there. Dr. Packer confirmed this to be true but noted that the other employee worked evening shifts, not nights, during which there were “several other work location options” and “sufficient staff available to cover the Emergency Department, ” neither of which was the case during night shifts.
He further reiterated that staffing was dictated by hospital needs and asserted that deSaulles’s claim of being promised when hired that she need not work more than four shifts per pay period was unsupported and unlikely given the staffing history of the Patient Business Services department. He also noted that this alleged promise was contrary to deSaulles’s offer letter, which had reserved Hospital’s right to make changes to reporting assignments, duties, or job title at its sole discretion. But Dr. Packer emphasized that he had reinforced with Patient Business Services deSaulles’s strong preference to work 39 hours or less per pay period and that Hospital would attempt to honor that preference, though it could not be guaranteed.
Dr. Packer disputed that deSaulles’s recent scheduling had been in retaliation for her grievance and attributed that scheduling to “the current pool of available registrars, medical leaves, vacations, and patient volume.” And he confirmed that deSaulles was not required to work in the emergency room on the December 20th night shift as originally scheduled and that this would not result in an unscheduled absence. But he also made clear that if she were “unable or unwilling to work future scheduled shifts, [her] management team would have no choice but to record future such absences as unscheduled absences and treat them according to hospital personnel policies.”
H. deSaulles’s Later ER Shift and Her First Doctor’s Note
When deSaulles returned to work from her Christmas leave on December 26, 2005, she had not gotten a note from her doctor, she had not requested an independent medical examination, and she refused to work in the emergency room during the course of a night shift, as a result of which she was excused from working that shift.
The next day, deSaulles was contacted by phone by Joanne Webster, Hospital’s Human Resources Director, about this incident. Webster offered deSaulles a two-week unpaid personal leave of absence so she “would have time to obtain a doctor’s certification regarding her work limitations. The leave of absence enabled [deSaulles] to avoid working in the Emergency Department, which she indicated she could not do, provided her time to obtain a medical certification, and ensured she would not be disciplined for refusing to work” as she would not be subject to Hospital’s attendance policy while on leave. deSaulles asked to be accommodated instead by not working in the emergency room during any shift. Webster informed her that this was not possible to guarantee “given the limited coverage on the night shift.” Webster reminded deSaulles that until she provided a doctor’s note regarding her work restrictions and any reasonable accommodations could be identified, deSaulles was expected “to work the hours and the duties to which [she was] assigned.”
deSaulles did not agree to take a leave of absence, as she communicated by email to Webster and Dr. Packer on December 30, 2005, because she needed to work and her family relied on her paycheck. She said that the “suggestion made by Ms. Webster that [she] consider taking a leave of absence pending the confirmation of [her] status as disabled under [FEHA] is patently unfair.” deSaulles believed that rather than “taking away [her] shifts, ” Hospital should be “trying to work with [her].” She considered such a leave of absence as an adverse action and “punish[ment]” for requesting accommodation and she threatened legal action if she were not permitted to work her regularly scheduled shifts without going into the emergency room. She was nevertheless sent home when she showed up to work shifts on January 1 and 2, 2006, but refused to cover breaks and a meal period in the emergency room. She also imposed conditions on any independent medical examination, which included that the doctor not be affiliated with Hospital, that she be allowed to bring her attorney to the examination, that the exam be taped, that it not include particular kinds of tests, that no procedure be used that is “painful, protracted, or intrusive, ” and that she not be required to disrobe. Hospital considered these conditions “impractical.”
A few days later, deSaulles sent a handwritten note to Dr. Packer, Joanne Webster, and Sharon Griffin. The note said that her phone calls and email had not been returned, and in light of that, she had elected to obtain a note from her doctor in Los Angeles rather than an independent medical examination to support her request for accommodation. deSaulles reiterated that she considered the Human Resources department to have taken an adverse action against her by sending her home from work and placing her on leave and she requested that she be contacted before January 8, 2006, her next scheduled work shift.
On January 4, 2006, deSaulles saw Dr. Kahn in Los Angeles. They discussed that in previous months, deSaulles had been scheduled to work in the emergency room “in a concentrated area of undiagnosed ill patients.” She would “register ill patients from across a table, with no physical or environmental barrier between her and the ill patients.” deSaulles asked for a note from the doctor and he provided one. The note said, “Maureen is under my care and is status post bone marrow transplant. I have advised the patient not to work in an area where she is in direct contact with ill patients.” deSaulles understood this to mean that she could not work in the emergency room as part of her job as a night shift inpatient registrar but also that she could not go to patients’ rooms as she had in the past while occasionally working in admission services or work as a registrar in the Arcade area of the hospital. But, as he only later expressed during the litigation, her doctor was concerned that “direct contact with infectious patients in the emergency room environment at [Hospital] posed a specific risk” to deSaulles and that she would be “at heightened risk of illness if forced to have direct contact with multiple undiagnosed ill patients per shift without any physical or other barrier between” her and the patients, though he did not say this in the note or otherwise define what he meant by prescribing against her having contact with “ill patients.”
On January 4 or 5, 2006, apparently before receiving deSaulles’s doctor’s note, Hospital formally placed her on an up to 60-day leave of absence. This leave was characterized as “personal” on the employee change form. But a letter dated January 4, 2006, from Webster informing deSaulles of the leave chronicled how, from Hospital’s point of view, deSaulles had obstructed the interactive process by refusing to provide her doctor’s certification about her work restrictions and imposing unreasonable conditions on an independent medical examination, and at the same time refusing to work in the emergency room. The letter explained that another employee working the evening shift who did not work in the emergency room was in a different position than deSaulles relative to Hospital’s business needs because of the lower level of night-shift staffing. And it disputed that there was another night shift registrar who did not work in the emergency room. The letter further characterized deSaulles’s refusal to work in the emergency room without providing a doctor’s note as “a deliberate failure to comply with instruction, insubordination, and the basis for a written warning that [she would] receive upon her return to work.” The letter finally said that in light of deSaulles’s “failure to cooperate, [Hospital had] no choice but to place [deSaulles] on a leave of absence of no more than 60 days effective immediately” and that it was “providing this leave as an accommodation despite [deSaulles’s] failure to provide [Hospital] with an appropriate doctor’s certification.” And Hospital requested again that during the leave, deSaulles “obtain certification from a healthcare provider of [her] choice outlining the extent and nature of the work restrictions [she was requesting]. Upon receipt of that certification, [Hospital would] engage in an interactive process to identify appropriate accommodations, if any.”
Hospital later characterized the purpose of the leave as medical. And according to Webster’s later testimony, the purpose of this leave “was to ensure that [deSaulles] remained an employee while she and the hospital attempted to find an accommodation for her.” A leave of absence was an accommodation if an employee could not work at his or her position and it was “for the benefit of the employee” in that the employee was not terminated. But Hospital had no established written policy for placing an employee on medical leave of absence if the employee did not request it.
The record contains conflicting information about whether this leave began on January 4 or January 5. Hospital written policy provides for various types of leave from five days up to six months, including for “family care and medical leave, ” “personal medical leave (including pregnancy), ” “ work-related medical leave, ” “personal leave, ” “military and disaster service leave, ” and “educational leave.”
I. The Interactive Process
deSaulles provided her doctor’s note to Hospital on or about January 5, 2006. Hospital interpreted the note literally and broadly, understanding that deSaulles could not have contact with patients who were “ill, ” which was the majority of its admitted patients. A meeting took place four days later, which was attended by deSaulles and her husband, Sharon Griffin, Mary Goodby, and Pam Adams, a Hospital Patient Business Services coordinator. The focus of the meeting, which was “meant as a starting point for the interactive process to determine if [deSaulles] could be accommodated, ” was on identifying possible accommodations to enable her to continue working as a registrar. deSaulles was provided with a written job description of the registrar position and a list of open positions at the Hospital with an invitation to contact Hospital to discuss any of them she might be interested in. She presented a written list of proposals for accommodations, all of which incorporated her not working more than 39 hours in a pay period and not working day shifts during the week so she could be home with her child. The proposed accommodations included deSaulles’s working her same inpatient shift on Sunday and Monday nights with someone else, such as her supervisor, covering the emergency room; an “Alternative Weekend Shift” with deSaulles’s working day and evening shifts in inpatient services and in census; a “Modified Work Schedule” consisting of a newly created shift that overlapped the evening and night shifts in inpatient services and census; reassignment to a vacant position; or “Job restructuring, ” consisting of newly created shifts “where duties include scanning/Inpatient services in [the] back office at agreed upon days and times.” These proposed accommodations and the job duties of a registrar were discussed at the meeting and Mary Goodby promised that she would consider the proposed accommodations and get back to deSaulles.
After the meeting, Griffin, Goodby, and Adams reviewed and discussed deSaulles’s proposed accommodations. They determined that she could not be reasonably accommodated as a registrar with her medical limitations as prescribed by her doctor because all registrar positions required direct patient contact at least sometimes and many patients served by Hospital are “ill.” Further, these patients use the same hospital facilities that employees use, subjecting all employees working there to “direct contact with an ill patient” setting aside the particular face-to-face contact with patients required of the registrar position.
They also determined that deSaulles’s specifically proposed accommodations were unreasonable or infeasible. Because there is low staffing at night and the emergency room is the busiest area of the hospital then, night shift registrars must be able to work there—where one would have contact with ill patients—because registrars may be assigned there depending on need and they may be required to relieve the emergency registrar during breaks or to double up there because of high impact, which happens with some regularity. Moreover, as planned, beginning in February 2006, all night shift registrar workstations were being relocated to the Emergency Department to address adequate staffing needs.
As to the proposal for deSaulles to work “alternative weekend shifts, ” this was not feasible because all shifts proposed required patient contact either in the Arcade, emergency room, or patients’ rooms. And the weekend day shift proposed was already filled by another employee. Nor could deSaulles work as a registrar for “inpatient services/census” on the proposed “modified work schedule, ” which consisted of overlapped portions of existing shifts, because this would still require patient contact in the Arcade or emergency room. Moreover, such shifts did not exist and establishing them would require reduction of staffing during existing shifts and would “greatly disrupt” the registrar schedule that Hospital maintained. Finally, deSaulles’s suggested “job restructuring” whereby Hospital would “[c]reate shifts where duties include scanning/Inpatient services in [the] back office at agreed upon days and times” would require the Patient Business Services department to “create a new position” specifically for deSaulles as no such position existed. Hospital sometimes did restructure an existing but vacant position as this circumstance presented the opportunity to reassess department needs and reconfigure a job when it would not affect an existing employee.
This left only the proposed accommodation of deSaulles’s being reassigned to a vacant position, which Hospital was open to exploring, but it likely would not be a registrar position because “all registrars have contact with patients.” Mary Goodby decided to “review other open positions in [Patient Business Services] and hospital-wide to determine if a position existed that would accommodate [deSaulles’s] condition.”
Two days after the meeting, on January 11, 2006, Goodby wrote to deSaulles and explained that the suggestions she had made “relative to changing the duties of [her] current Registrar position would require the hospital to either create a new position for [her], or eliminate some of the essential functions of [her] job. Some of [the] suggestions might also have a negative impact on other employees in the department as far as the hours available to them.” She also informed her that within 30 days, “all of the Registrars will work out of the Emergency Department, which is not an option for you in light of your current restrictions. For these reasons, it does not appear that we will be able to accommodate you in the position of Registrar at this time. [¶] We are in the process of exploring other accommodations for you in the Patient Business Services Department. If we are unable to identify appropriate accommodations in that department, we will explore accommodations hospital-wide. It is important that you continue to take part in this process. I ask that you contact me with any additional suggestions that you have as to possible accommodations in Patient Business Services, or in other areas of the hospital. I will contact you again no later than next week to discuss any accommodation options the hospital has identified. In the meantime, the hospital will continue to provide you with a leave of absence as an accommodation.”
deSaulles responded by letter to Goodby on January 17, 2006. She accused Hospital of interpreting her doctor’s note “in the broadest manner possible” in order to deny her request for reasonable accommodation. She provided another note from her doctor clarifying her work restrictions, which explained that she had “been advised not to work in areas that put her in contact with patient[s] who have acute viral[, ] bacterial[, ] or fungal infections.” She expressed her belief that her suggested accommodations “could be made with minimal disturbance to the workplace” and she disputed that her request for accommodation would affect her ability to perform the essential functions of her job as described in the job activity summary. She contended that her work limitations, as clarified by her doctor, “would only minimally affect [her] ability to perform as a Registrar, if at all” and that she could avoid contact with infectious patients even in the emergency room by a simple inquiry or by reviewing the “ER ‘roll sheets, ’ which contain the diagnoses made by the ER physician.” At the same time, deSaulles’s own understanding was that even with the clarified work limitations, she was unable to work not just in the emergency room because undiagnosed, ill patients came into the Hospital there but she also could not go into patients’ rooms or work in the Arcade or otherwise have contact with “ill patients.” She would also have to generally avoid patients and “watch out for everyone” in the hallways while on break or lunch and “take care not to go to the bathroom” in the hospital during an eight and a half hour shift because any patient in the hospital could be suffering from an acute viral, bacterial, or fungal infection and patients used common areas of the hospital along with employees.
Although he did not say so in the two notes he provided but as he declared in opposition to summary judgment, deSaulles’s doctor had by his notes “intended to prevent [her] from working in the emergency room at [Hospital].” The notes were not “intended to suggest that any hospital environment is unsafe for [deSaulles]” and in his opinion, which again was not expressed to Hospital during the interactive process, “occasional contact with ill patients is not a problem for [her], in a hospital or other environment where persons congregate. If it were such a problem, [he] would also have recommended that [she] avoid grocery stores, movie theaters, or any other location where she might come into direct contact with individuals with acute viral, bacterial, or fungal infections.” deSaulles’s doctor’s unexpressed concern was that emergency room employees “were exposed to a high concentration of individuals with acute infections without any physical or other barrier to protect” them. Even if deSaulles were to wear a surgical mask in the emergency room, her doctor’s unexpressed opinion was that “the infectious environment would nevertheless be unsafe for” her. As to other areas of the hospital, her doctor’s unexpressed opinion was that she could “mitigate this concern by wearing a surgical or other kind of prophylactic mask in these other areas of the hospital. Unlike in the emergency room environment at [Hospital], wearing a surgical mask, while not necessary, would ensure that [deSaulles’s] compromised health is not threatened by working in other areas of the hospital such as hallways, waiting areas, or restrooms.”
deSaulles further asserted in her letter that for several reasons, Goodby’s response to her suggested accommodations was incomplete and she asked for additional evaluation and response in light of her doctor’s clarification of her work limitations. She characterized her leave of absence as “involuntary” and as “punish[ment]” as she had never requested to be sent home from work or taken off the schedule. She finally asserted that no additional “[i]nteractive [e]xchange” was “necessary” because her proposed accommodations had not changed, with the exception of her request that she be placed elsewhere in the hospital when all registrars are relocated to the emergency room, and she threatened to file a complaint with the Department of Fair Employment and Housing if she were not returned to the work schedule. Goodby understood deSaulles to be terminating the interactive process by this statement, although the process did continue.
Goodby continued to search for accommodations in light of deSaulles’s clarified work limitations but believed that because patients with acute viral, bacterial, or fungal infections, just like “ill patients, ” were located throughout the hospital, this would be problematic. She reviewed positions in other departments of the hospital and located an open one with no patient contact. The position was telephone operator and it paid the same as registrar, was located in off-site offices where patients do not visit, and was part time, requiring the employee to work approximately 48 hours per pay period, predominantly during the weekday shifts. Goodby also reviewed openings in Patient Business Services and located a per diem registrar position in the Arcade that was predominantly scheduled for weekend days. The employee would be subject to being moved around in different locations of the hospital as needed and would be responsible for covering Admission Services and possibly the emergency room as well. “[B]ecause that position involved possible contact with patients who could have acute viral, bacterial, or fungal infections, ” she asked deSaulles to obtain a release from her physician if she wished to take that position. Goodby suggested the position because deSaulles had indicated that she wanted to remain a registrar and she thought this was an option that deSaulles might explore with her doctor, particularly if he still felt that her occasional contact with patients was acceptable.
On January 20, 2006, Goodby sent deSaulles a letter notifying her of the two open positions. Goodby also responded to other concerns deSaulles had raised in her last letter. She apologized if her previous explanations about the infeasibility of deSaulles’s proposed accommodations were not clear enough and she tried to clarify them. She explained that the “registrar position’s essential function is to register patients” and that the position “exists to handle the admission, transfer and discharge of patients. For the most part, patients are admitted to the Hospital because they are ill. This is true on all shifts both inside and outside the ER. For that reason, your physician’s prior restriction that specified that you could not come in contact with ill patients resulted in your not being able to perform the essential functions of the registrar position with or without reasonable accommodation. Your physician’s recently revised work restriction, which specifies that you not be in contact with patients with ‘acute viral, bacterial or fungal infections’ does permit you to have contact with more patients and therefore, may allow you to work in the registrar position.”
Goodby’s letter reiterated that the law does not require an employer to create new positions in an effort to provide reasonable accommodation, nor was it Hospital’s policy to do so. It also stated Hospital’s policy to rotate night shift registrars in and out of the emergency room “for purposes of cross-training, covering meals and breaks, and because, in the very near future, all night shift registrars will work in the ER on a full-time basis.” And the letter told deSaulles that her leave of absence, though involuntary, was “necessitated by the restrictions first you and then your physician have placed on your ability to perform the essential functions of your job. You were placed on a leave of absence so that we could actively work to locate an appropriate accommodation for these restrictions that both addresses the restrictions and meets the Hospital’s business needs.” The essential functions to which Goodby was referring were those that required direct patient contact.
deSaulles responded to Goodby by letter dated January 30, 2006. In the letter, she rejected the telephone operator position because it involved weekday shifts “when she was not able to work” and it also involved more than 39 hours per pay period. She rejected the weekend day Arcade registrar position because it might involve covering the emergency room or contact with acutely infectious patients, which her doctor had already advised against. She refused to return to her doctor to discuss the position because in her view, it was “absurd” to request her “treating physician, who directed [her] to avoid working in the ER, to now release [her] to work in the ER.” She pointed out that Hospital had previously indicated that there was sufficient staff on day and evening shifts so that an inpatient registrar could avoid the emergency room on those shifts. And she accused Hospital of “not acting in good faith” because, in her view, she was being offered positions that were “known to conflict” with her availability and “conditional proposals requiring that [she] ignore [her] treating physician.” She further pointed out what she characterized as “misrepresentations” in Goodby’s January 20th letter, including that the registration of patients through contact with them was an essential function of the registrar’s job. deSaulles made a “[f]inal [r]equest” for a reasonable accommodation and expressed her hope that Hospital would “live up to its responsibility under” the law “rather than continue to penalize [her] for requesting a reasonable accommodation” through an “involuntary leave.” In deSaulles’s view, the offer of the two positions was “a bogus attempt, ” “in bad faith, ” and not “sincere” because Hospital was already aware of her scheduling limitations. She was not aware of any other open positions but she “knew they could have shuffled people to have [her] come in to work shifts.”
It is not clear if this situation was different for registrars working in the Arcade as opposed to inpatient services, as deSaulles had mostly done.
Goodby wrote back to deSaulles on February 6, 2006. The letter said that Hospital was “committed to engaging in the interactive process with [deSaulles] to identify reasonable accommodations that [would] address [her] work restrictions and the hospital’s business needs” and that deSaulles’s accusations about Hospital’s misrepresentations were false. It added that deSaulles had “mischaracterized or misunderstood the hospital’s offer of the per diem Arcade registrar position in [her] current department. The hospital did not request that your doctor release you ‘to work in the ER.’ As previously explained in my January 20, 2006 letter, ‘the Arcade position... potentially involves contact with patients who have acute viral, bacterial, or fungal infections.’ Because the Arcade position has the potential to not comply with your work restrictions, if you accepted [it], your doctor would have to specifically release you to work in the Arcade position. You mistakenly believe that your work restrictions would allow you to perform the registrar’s job in a location other than ER. As previously explained, all registrar positions potentially involve contact with patients who have acute viral, bacterial, or fungal infections. Rather than discuss this with your doctor to see if... he would release you to work in the Arcade position, you rejected the hospital’s offer of a reasonable accommodation in your own department.”
The letter also responded that Hospital had already addressed all the accommodations proposed by deSaulles and explained why they either would not “meet the restrictions imposed by [deSaulles’s] doctor, or [were] not feasible due to hospital policy and business needs.... The registrar’s job is to register patients, which means that a registrar must be exposed to patients in order to register them. The hospital requires a patient registrar to perform the essential function of registering a patient. This requirement is definite. While the hospital understands that you are unhappy that your work restrictions preclude you from returning to your prior job, you have rejected the only registrar job that may meet your work restrictions.” The letter continued, “You have also mischaracterized or misunderstood the hospital’s statements concerning job restructuring. As previously explained, your request for ‘job restructuring’ is actually a request that the hospital create a new position for you, by eliminating essential functions of the registrar job, and creating a registrar job that does not require patient contact. The law does not require, nor is it Hospital policy to create new positions as an accommodation.” And it pointed out that despite deSaulles’s statement that further meetings to continue the interactive process were “unnecessary, ” the process requires the participation of both the employer and employee. “The hospital has explained why it cannot meet your demands, and has offered alternative jobs as a reasonable accommodation. You have terminated the interactive process by stating that ‘no additional interactive exchange [is] necessary.’ ”
Goodby’s letter also offered deSaulles another position that had just opened up—evening registrar with seven “shifts for Admissions Services and on the Census desk” per pay period. The position required patient contact on the floor and in patients’ rooms as well as “availability to work in any Admitting/Registration area, including on occasion the Emergency Department.” Because the position might not satisfy deSaulles’s work restrictions, Goodby required her doctor’s release should she choose to accept it. If she did not accept it, coupled with her expressed wish not “to interact or meet with hospital representatives, the hospital’s only alternative [will be] to mail [her] a weekly list of job openings, ” from which she could contact Hospital if an opening interested her. The letter told her that in the meantime, she would remain on leave as an accommodation to her work restrictions because they prohibited her “from performing one of the essential functions of the registrar position, which is to have contact with patients who may have viral, bacterial, or fungal infections.”
deSaulles replied to Goodby’s February 6th letter by email sent that day. She rejected the second registrar position offered because it would require her to work more hours than she wanted. She also saw no need to check with her doctor about whether she could accept the position given her work limitations because his notes had clearly conveyed to her that she “[could] not have patient contact.” But deSaulles requested that the position be split, enabling her to work on the Census desk one alternating Friday shift while avoiding working in Admission Services, which required contact with patients who may be suffering from acute infections. deSaulles correctly believed that Hospital had previously accommodated another employee similarly, but only temporarily, when that employee could not engage in excessive walking during a pregnancy, though she did also work in the emergency room a couple of times during that accommodation.
Goodby replied by letter on February 14, 2006, explaining that the offered shift could not be split due to Hospital’s business needs and because doing so would require the elimination of essential functions of the job and the creation of a new position. Goodby also explained that even on the Census desk, registrars were sometimes required to “assist in other areas, including ER, Arcade and Admission Services.” She reiterated that Hospital would continue to send deSaulles a weekly list of job openings and she invited her to contact Hospital about any that might interest her, noting that deSaulles would remain on leave “as an accommodation to [her] work restrictions” for “up to six months.” The human resource department sent deSaulles a weekly list for the next five months but she did not respond or express interest in any open position.
deSaulles did not respond to Goodby’s February 14, 2006 letter, believing that Hospital “had no intention of accommodating” her and that Goodby’s stated reasons for its inability to do so as she had requested were “nonsense.”
Although it is unclear in the record, it appears that Hospital may have extended what started as deSaulles’s 60-day leave of absence from its original expiration of March 5, 2006 to April 30, 2006. On May 2, 2006, deSaulles’s leave of absence was “extend[ed], ” effective May 4, 2006 through July 4, 2006. The purpose of the leave was characterized on the employee change form as “medical” as opposed to “personal, ” as it had been previously so described. The form shows the total leave period to be six months—from “1/5/06 to 7/4/06.” Thus, along the way, Hospital apparently converted what it had originally and involuntarily imposed as up to a 60-day personal leave of absence to a six-month medical leave of absence, the maximum period available without a new medical certification of need per Hospital’s policy on medical leaves of absence.
We so speculate because the employee change form dated January 5, 2006, reflected that the leave was “not to exceed 60 days” but it shows March 5, 2006 crossed out with hand written interlineations and a new date of April 30, 2006 written in.
Also on May 2, 2006, Joanne Webster, Director of Hospital’s Human Resources, wrote to deSaulles “to remind her that she was welcome to contact the employment office at the hospital to discuss open positions and identify a job that met her work restrictions.” deSaulles was continuing to periodically receive a list of Hospital open positions, which, in her mind, were just the “same job listings that they post for everyone to see. They were not put together just for [her].” The letter also “notified [deSaulles] that her six-month medical leave of absence would expire on July 4, 2006.”
DeSaulles responded by letter dated May 16, 2006. She expressed surprise at Webster’s letter and accused Hospital of having made no “attempt to communicate with [her] for several months since placing [her] on a forced leave of absence.” She conflated the open positions she was in fact being informed about on a weekly basis with the “vacant shifts” Hospital had refused to offer her by splitting the duties of an existing position as she had requested. She accused Hospital of being unwilling to accommodate her because it had declined to offer her “vacant shifts” on the Census desk, instead offering her full or part time positions, and stated her position that Hospital had only made patient contact an essential function of the registrar position as one of the “great measures taken by [Hospital] to bar [her] from returning to work.” She referred to the list of proposed accommodations she had provided the previous January, noting that her availability had not changed, and invited Hospital to “revisit” her letters, emails, and list of suggested shifts if Hospital was “sincere” about providing her a reasonable accommodation, asserting that she had always been “able to perform every essential function of [her] job as a Registrar.” She did not contact Hospital about any of the open positions being sent to her because she felt that Hospital “had no sincerity in offering [her] a job in good faith” and that “[t]hey were not receptive to any of [her] requests for a position there.”
Webster responded to deSaulles’s May 16 letter on May 30, 2006. She disputed deSaulles’s assertion that Hospital had not been communicating with her regularly in an effort to accommodate her because Hospital was continuing to send a list of weekly job openings. The letter also clarified the distinction between open jobs and vacant shifts, noting that those shifts “[could] not be singled out for [deSaulles] to fill without effectively creating a new position for [her]” and confirming that Hospital had offered deSaulles and “repeatedly encouraged [her] to consider other positions with the hospital for which [she] was qualified.” It was not Hospital’s policy to allow per diem employees just to fill in vacant shifts without being assigned a base shift in order to maintain their skill sets and training.
deSaulles did not respond to Webster’s May 30 letter. Webster wrote to deSaulles again on July 3, 2006, the day before her asserted medical leave was set to expire. She asked her to obtain a certification from her doctor by July 12, 2006, in order to extend medical leave for an additional six months as an accommodation per Hospital policy, thereby remaining employed. deSaulles wrote back on July 12, 2006, disputing that she had requested or actually been placed on medical leave and pointing out that she had previously obtained doctor’s notes so that she could work, not be placed on leave. She asserted that her medical condition remained the same and called the request for her to provide another doctor’s note in order to extend her “involuntary” leave “ridiculous.” She reiterated that in her view, she was able to perform all the essential functions of her job and “could easily return to work if the hospital would select one of the reasonable accommodations available, ” i.e., one of those she had already suggested, “before choosing to end [her] employment with [Hospital] for reasons that are so obviously disingenuous.”
On July 17, 2006, her leave not having been extended by her provision of a new doctor’s certification, which from Hospital’s point of view deSaulles had refused to obtain, her employment with Hospital was terminated, though Hospital considered her eligible for rehire.
At no time during deSaulles’s employment did Hospital consult with anyone, on staff or otherwise, with specific medical expertise in infection control or infection policy or practice about what her work limitations, as specified by her doctor, required or the meaning of the limitations as prescribed in her doctor’s notes. Hospital’s decisions about what it could or could not reasonably or feasibly accommodate in terms of deSaulles’s work restrictions were therefore made by people lacking this medical expertise but who relied, as lay people, on her doctor’s notes to set the parameters of her work restrictions and identify possible accommodations. During the interactive process, deSaulles mentioned but did not formally request or suggest accommodation in the form of glass screens at registrar stations in Hospital’s remodeled emergency room.
II. Procedural Background
A. DFEH Proceedings
On July 17, 2006, deSaulles filed a complaint with the California Department of Fair Employment and Housing, a condition to an action under FEHA, and requested a right-to-sue notice. The complaint said that on February 14, 2006, and continuing to the present, Hospital, through Mary Goodby, had discriminated against her by denying her accommodation because of her physical disability (cancer), and that the reason given by Hospital was because of its “inability to accommodate the work restrictions advised by [deSaulles’s] treating oncologist.” That same day, the Department of Fair Employment and Housing issued its notice of case closure and right-to-sue notice, informing deSaulles that she had one year within which to file an action in state court.
On January 17, 2007, deSaulles filed another complaint with the Department of Fair Employment and Housing and again requested a right-to-sue notice. This one said that on July 18, 2006, Hospital, by Joanne Webster, had discriminated against her by firing her because of her medical condition and that the reason given by Hospital was because of its “refusal to accommodate [her] work restrictions advised by [her] treating oncologist.” That same day, the Department of Fair Employment and Housing issued its notice of case closure and right-to-sue notice, informing deSaulles that she had one year within which to file an action in state court.
Also on January 17, 2007, deSaulles filed a third complaint with the Department of Fair Employment and Housing and again requested a right-to-sue notice. The complaint said that on July 18, 2006, Hospital, through Joanne Webster, had fired deSaulles in retaliation for her having filed “a grievance, two appeals and then a DFEH complaint as well as an unemployment insurance appeal.” That same day, the Department of Fair Housing and Employment issued its notice of case closure and right-to-sue notice, again informing deSaulles that she had one year within which to file and action in state court.
B. deSaulles’s Complaint
On July 17, 2007, deSaulles, acting as a self-represented litigant, filed her complaint against Hospital. She alleged six causes of action. The first was labeled “Failure to Accommodate Physical Disability or Medical Condition.” It alleged, among other things, that Hospital had informed deSaulles on February 14, 2006, that it could not accommodate her disability or medical condition and from January 6, 2006, though the present, Hospital had failed to reasonably accommodate her by 1) placing her on a forced leave of absence; 2) wrongfully asserting an inability to accommodate her as “a pretext to discriminate against” her because of her “physical disability and/or medical condition, and/or in retaliation against [her] for asserting her rights under [Hospital’s] grievance procedure, the FEHA, and/or the [California Unemployment Insurance Appeals Board;” 3) “[r]epeatedly attempting to recast [her] forced ‘leave of absence’ as a requested medical leave and/or requested leave of absence;” 4) failing to “engage in a good faith interactive process” to allow her to return to work in her prior position; and 5) failing to “reasonably or at all accommodate [her] physical disability and/or medical condition” when it could have “without undue hardship, restructured the job for [her] or used reasonable accommodation(s)” as she had offered. She further alleged that Hospital subjected her to other unspecified “forms of harassment and discrimination because of her physical disability and/or medical condition, ” all of which caused her damage and “intangible loss of such employment-related opportunities.”
The complaint was structured in seven causes of action but one strictly alleged deSaulles’s right to punitive damages in connection with her combined cause of action for intentional and negligent infliction of emotional distress. A request for punitive damages is technically not a separate cause of action but a claim of damage attendant to such a cause of action.
The other causes of action were labeled retaliation in violation of FEHA, breach of implied in fact contract, breach of implied covenant of good faith and fair dealing, intentional and negligent infliction of emotional distress, and wrongful termination in violation of public policy.
deSaulles then retained an attorney and Hospital answered the complaint. Among its affirmative defenses were that providing a reasonable accommodation to deSaulles would have caused undue hardship and that her disability or medical condition posed a safety threat in the workplace that a reasonable accommodation could not eliminate, both defenses under FEHA.
C. Hospital’s Motion For Summary Judgment or Adjudication
Hospital moved for summary judgment on the complaint, or, alternatively, for “summary adjudication of the issues.” Short of summary judgment, Hospital specifically sought summary adjudication of deSaulles’s “first cause of action for failure to accommodate because: [1) she] cannot perform the essential functions of her job with or without reasonable accommodation;” 2) she rejected Hospital’s offer of a reasonable accommodation; and 3) she caused the breakdown in the interactive process. As to her second cause of action for retaliation, Hospital sought summary adjudication “because there is no substantial evidence of pretext.” As to her third cause of action for breach of contract and her fourth cause of action for breach of the covenant of good faith and fair dealing, Hospital sought summary adjudication “because as a matter of law [she] was discharged for cause.” As to her fifth cause of action for “intentional and negligent infliction of emotional distress” and her sixth “cause of action” for punitive damages in connection with this claim, Hospital sought summary adjudication in that these claims were barred by the exclusivity provisions of the Workers’ Compensation Act. As to her seventh cause of action for wrongful termination in violation of public policy, Hospital sought summary adjudication “because [it] violated no public policy.”
We note the misnomer here and observe that it is one we frequently see. Code of Civil Procedure section 437c no longer allows for summary adjudication of most “issues, ” requiring that the adjudication dispose of an entire cause of action or affirmative defense, except in the case of claim for punitive damages or an issue of duty—the only two discrete issues that are still subject to summary adjudication. (Code Civ. Proc., § 437c, subd. (f)(1).)
Technically, these are two, not three, causes of action—a single cause of action for intentional infliction of emotional distress with an attendant claim for punitive damages and a separate cause of action for negligent infliction of emotional distress—each having separate and distinct elements.
deSaulles opposed the motion, contending, among other things, that her first cause of action for failure to accommodate also included a separately pleaded claim for disability discrimination under section 12940, subdivision (a), which Hospital’s motion had not addressed. She also alluded to additional suggested accommodations not previously developed that she contended Hospital had failed to implement. And she concurrently filed “requests” for a continuance of the hearing to permit her to conduct further discovery and for leave to amend her complaint. With regard to the latter, she sought to add 1) allegations about her asserted intentions to seek union assistance to address Hospital’s “ongoing unfair treatment of nonprofessional employees” and other “protests of [employee] health and safety issues” to the background section of the pleading; and 2) Labor Code sections to the seventh cause of action to supply additional statutory bases to support her claim for wrongful termination in violation of public policy. deSaulles intended that her “requests, ” which Hospital opposed, would be heard concurrently with Hospital’s noticed motion for summary judgment that was set 31 days prior to the scheduled trial date. deSaulles did not seek to add a specifically pleaded cause of action for disability discrimination, electing to stand on her position that her first cause of action for failure to accommodate had also alleged a distinct and separate claim for discrimination.
The evidence was that at some point, deSaulles “may have” mentioned to Hospital the idea of installing a glass separation for safety reasons in the emergency room but this suggestion, if made, went no further during the interactive process. Her later opposition to Hospital’s motion for summary judgment argued that Hospital had not considered this or other physical alterations to the facility, such as preventative ventilation and air flow mechanisms, as alternative forms of accommodation. But deSaulles did not offer any evidence to establish, or to create a triable issue of material fact on the issue, that any particular measures would have been reasonable, effective, or feasible to accommodate her.
D. The Court’s Order
At the hearing, the court denied deSaulles’s request for a continuance and her request to amend the complaint, the latter being “untimely, ” and took the merits of Hospital’s motion under submission. The court later issued its written order denying summary judgment on the entire complaint.
Regarding deSaulles’s first cause of action for failure to accommodate, the court rejected her claim in opposition to the motion that the cause of action had additionally pleaded a separate claim for disability discrimination that had not been addressed by Hospital’s motion, finding “no specific allegations of disability discrimination other than allegations regarding [Hospital’s] failure to accommodate.” As to deSaulles’s pleaded failure-to-accommodate claim, the court granted summary adjudication to Hospital, finding no triable issues regarding these established facts: 1) deSaulles caused the breakdown in the interactive process; 2) she rejected reasonable offers of accommodation based on her own scheduling preferences; 3) she refused to have her doctor review the registrar positions offered; 4) Hospital interpreted deSaulles’s doctor’s notes reasonably, and if there was a misunderstanding as to the meaning of the notes, it was her responsibility to seek clarification from her doctor; 5) deSaulles’s suggested accommodations were infeasible; 6) an essential function of the registrar position was face-to-face interaction with patients who might suffer from acute infections; and 7) deSaulles’s barrier accommodations suggested during the litigation, such as “airflow” modifications and the installation of glass partitions in the emergency room were not offered during the interactive process.
The court denied summary adjudication as to deSaulles’s second cause of action for retaliation, finding a triable issue of material fact as to whether deSaulles’s “failure to provide a doctor’s certification was a pretext to discharge her.” This conclusion was based on Hospital’s varying statements at different times about the purpose of deSaulles’s leave of absence—as medical or personal—and if medical beginning May 4, 2006, then a maximum six month leave should not have expired just two months later in July when she was terminated because she did not provide a renewed doctor’s certification to warrant an additional six-month medical leave. According to the court, this left a triable issue of fact as to the grounds for her discharge. The court also denied summary adjudication of deSaulles’s third cause of action for breach of contract and her fourth for breach of the covenant of good faith and fair dealing for the same reason—the existence of a triable issue of material fact as to whether she was discharged on a pretext without good cause.
As to deSaulles’s fifth and sixth causes of action for infliction of emotional distress, the court concluded that these claims could be pursued outside the workers’ compensation system only if deSaulles could establish her claims for retaliation or discrimination, the latter of which the court had already concluded was not pleaded. But because a triable issue of material fact remained as to her retaliation claim, summary adjudication was denied as to these common law tort claims as well.
The court denied summary adjudication as to deSaulles’s seventh cause of action for wrongful termination in violation of public policy on the same basis—a triable issue of material fact existed as to the basis of her discharge.
E. DeSaulles’s Motions For New Trial and Reconsideration
deSaulles’s moved for a new trial and for reconsideration of the court’s summary adjudication of her first cause of action for failure to accommodate. The motions cited the existence of newly discovered evidence which, in the exercise of reasonable diligence, deSaulles could not have discovered before the previous summary judgment hearing. This evidence was deposition testimony that had been the basis of deSaulles’s earlier request to continue the summary judgment hearing. The deposition testimony was from Hospital’s Vice-President of Nursing, Terril Lowe, and its Infection Control Coordinator, Patti Emmett. Lowe’s testimony concerned her knowledge of the difference between acute and chronic infections; Hospital’s employment of persons who are HIV positive in its HIV clinic, who have access to all Hospital facilities; the fact that Hospital employs a doctor who is an infection control specialist as the medical director of its HIV clinic; and infection control procedures used by Hospital. Emmett’s testimony concerned general infection control procedures in place at Hospital and her lack of knowledge of deSaulles and her medical restrictions on the job. deSaulles argued that Hospital had been legally obligated to consult these infection control specialists within its employ regarding her medical restrictions as prescribed by her doctor and potential accommodations and that it had not, leading to decisions about her restrictions and potential accommodations that were based on non-medical considerations.
Hospital also moved for reconsideration of the court’s order to the extent it denied summary judgment or adjudication of the remaining causes of action. The court denied the motion, and it is not relevant to this appeal. Hospital separately appealed but its cross-appeal was voluntarily dismissed.
At the hearing on the motions for reconsideration and new trial, the court rejected this argument and observed that Hospital had wanted more specific medical information from deSaulles’s doctor during the interactive process but she had declined to provide it. The court denied the motion for new trial. But it granted the motion for reconsideration, considered the new evidence, and affirmed its prior order granting summary adjudication to Hospital of deSaulles’s first cause of action for failure to accommodate.
F. Trial and Judgment
At trial, Hospital brought several motions in limine. These included one to preclude evidence or argument that it had failed to accommodate deSaulles, failed to engage in the interactive process, or had engaged in disability discrimination based on the court’s prior rulings on summary adjudication (motion no. 1); one to preclude any evidence of discrimination, failure to accommodate, or retaliation by Hospital with respect to any other employees (motion no. 8), and one to preclude any evidence of Hospital’s violation of the Labor Code or deSaulles’s complaints about any such violations, the court already having denied deSaulles’s request for leave to amend her complaint to add such claims (motion no. 11).
Over deSaulles’s opposition, the court granted these three motions in limine. The effect of its having done so was that deSaulles was not in a position to offer evidence in support of her four remaining tort and statutory causes of action for retaliation, emotional distress, and wrongful termination in violation of public policy because, in the court’s view, all the evidence she could point to was that related either to the failure-to-accommodate cause of action that had already been summarily adjudicated and established in Hospital’s favor or to matters concerning her alleged workplace complaints that were protected under the Labor Code but had not been pleaded. deSaulles did not make an offer of proof as to any other alleged pre-textual basis for her termination. In light of the court’s rulings, which effectively dismissed deSaulles’s four remaining tort and statutory causes of action, there remained for trial only the two contract causes of action, which the parties elected to settle, placing their settlement on the record.
The record reflects the parties’ subsequent scrimmaging over a variety of issues relating to costs and the form of the judgment but final judgment against deSaulles was ultimately entered on January 6, 2009. It reflected the court’s summary adjudication of deSaulles’s first cause of action for failure to accommodate and provided that the court having granted Hospital’s motion in limine number 1 to preclude evidence and argument that Hospital “failed to accommodate [deSaulles’s] disability or to engage in the interactive process, or that [deSaulles] was harassed, discriminated or retaliated against in connection therewith, the court finds that [deSaulles] will be unable to introduce any evidence that would establish [her] second cause of action for retaliation, her fifth and sixth causes of action for intentional and negligent infliction of emotional distress, or her seventh cause of action for wrongful termination in violation of public policy.”
An initial judgment was entered and then vacated after a hearing on deSaulles’s motions for sanctions and to enforce settlement but these proceedings are not relevant to the appeal, which is from the amended judgment.
deSaulles timely appealed.
DISCUSSION
I. Scope of Appeal
deSaulles challenges the court’s orders and rulings denying her request to continue Hospital’s summary judgment motion; denying her request to amend her complaint; granting summary adjudication of her failure-to-accommodate cause of action; affirming that order after granting reconsideration thereof; denying a new trial regarding the same cause of action; and effectively dismissing her four remaining tort causes of action at trial as a result of in limine rulings excluding evidence consistently with the prior summary adjudication. We address these challenges in turn.
II. The Court Did Not Abuse its Discretion in Denying deSaulles’s Request to Continue Hospital’s Summary Judgment/Adjudication Motion
deSaulles filed her request to continue Hospital’s motion for summary judgment in connection with her opposition to the motion. She made the request under Code of Civil Procedure section 437c, subdivision (h), which provides in pertinent part that if “it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”
We review a court’s ruling on such a request for abuse of discretion. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100-101 (Knapp); Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-634 (Frazee).) “Notwithstanding the court’s discretion in addressing such continuance requests, ‘the interests at stake are too high to sanction the denial of a continuance without good reason.’ ([Frazee, supra], 95 Cal.App.4th at p. 634.) Thus, ‘[t]o mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated “ ‘upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.’ [Citation.]” [Citation.]... [There is] little room for doubt that such continuances are to be liberally granted.’ (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395; accord, Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.)” (Knapp, supra, 123 Cal.App.4th at pp. 100-101.) But continuance of a summary judgment hearing is not mandatory “when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under [Code of Civil Procedure] section 437c, subdivision (h). [Citations.]” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey).) In addition to meeting the statutory elements, the affidavit in support of the request for continuance must also establish the requesting party’s diligence in pursuing the needed evidence. (Id. at pp. 255-257.)
Even applying the liberal standard, we conclude that the trial court did not err or abuse its discretion here by denying deSaulles’s request for a continuance. In support of her request, deSaulles’s attorney declared that various depositions had not yet been taken, that other fruits of discovery were otherwise not yet available, and that he had an upcoming preplanned vacation. He averred that the referenced outstanding discovery “will significantly impact whether a triable issue exists of material fact on each cause of action in this case.” This averment falls short of the showing required by Code of Civil Procedure section 437c, subdivision (h) in that it offered nothing about what specific facts might exist or would be obtained through further discovery and how or that any such facts were relevant or essential to opposing the motion. (Cooksey, supra, 123 Cal.App.4th at pp. 254-255; Knapp, supra, 123 Cal.App.4th at p. 101.) Accordingly, deSaulles has not met her burden on appeal to show either that the requested continuance was mandatory in light of the liberality afforded to such requests or that the court abused its discretion in denying it.
There is another reason why deSaulles fails to show reversible error with respect to the court’s denial of her request for a continuance. After the court granted summary adjudication of her cause of action for failure to accommodate, deSaulles brought a motion for reconsideration of the order that included new evidence obtained through discovery that had been referenced in her prior request for continuance. The court granted reconsideration by considering the proffered evidence and yet affirmed its prior order granting summary adjudication of the cause of action. Thus, in the end, deSaulles was not prejudiced by the court’s earlier denial of her request for continuance, which effectively became moot because the court ultimately considered evidence that had previously been unavailable but was later obtained.
II. The Court Did Not Abuse its Discretion in Denying deSaulles’s Request For Leave to Amend the Complaint
deSaulles filed her request to amend her complaint with her opposition to Hospital’s motion for summary judgment, the hearing on which took place just 31 days before trial was set to begin. She did not file a noticed motion. The proposed amendments did not add any new separately stated causes of action but in essence would have pleaded additional statutory bases derived from the Labor Code to deSaulles’s cause of action for wrongful termination in violation of public policy. The factual basis for the amendments was deSaulles’s alleged workplace-safety complaints and threats to organize and seek union involvement if Hospital did not accommodate her and Hospital’s alleged termination of deSaulles for her having exercised these rights. These new allegations gave rise to a new right of action based on facts other than Hospital’s alleged violation of FEHA, the only statutory violations that were previously pleaded.
As noted, the proposed amendments did not include a separately pleaded cause of action for disability discrimination alleging facts beyond Hospital’s failure to accommodate deSaulles’s disability or medical condition.
Hospital objected to the proposed amendments on the basis that deSaulles had not properly sought them through a noticed motion and that she had been dilatory in seeking to amend with facts—of which she had been aware for some two years—on the eve of trial when general discovery was closing. The trial court denied deSaulles’s proposed amendments because it considered the request “untimely.”
“ ‘ “[T]he trial court has wide discretion in allowing the amendment of any pleading [citations], [and] as a matter of policy the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown. [Citations.]” ’ [Citation.] Nevertheless, it is also true that courts generally should permit amendment to the complaint at any stage of the proceedings, up to and including trial. [Citations.] But this policy applies ‘ “only ‘[w]here no prejudice is shown to the adverse party.’ ” ’ [Citation.] Moreover, ‘ “ ‘even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.’ ” ’ [Citations.] Thus, appellate courts are less likely to find an abuse of discretion where, for example, the proposed amendment is ‘ “offered after long unexplained delay... or where there is a lack of diligence....” ’ [Citation.]” (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175.) Such is the case here.
As Hospital points out, deSaulles’s proposed amendments arose out of alleged facts that occurred in 2005 and 2006, a year or more before deSaulles filed her complaint, and of which she had knowledge when she did so. She did not seek to amend until a year after filing her complaint, when facing a summary judgment motion directed to the existing pleading and on the eve of trial with discovery closing. Her request included no explanation for the delay and did not seek to militate against the prejudice to an opposing party that is inherent in such timing when the amendments expand both the factual and legal theories of the case.
deSaulles relies on Landis v. Superior Court (1965) 232 Cal.App.2d 548, 554, for the proposition that reversals on appeal are common where the court below denied leave to amend and prejudice is shown. But even there, the court acknowledged that denial of leave to amend is ordinarily upheld where there is a long, unexplained delay, particularly where that delay might result in a continuance to accommodate the adverse party—a likely scenario here because of the new facts proposed to be alleged and the impending closure of discovery 30 days before trial. She also cites Rojo v. Kliger (1990) 52 Cal.3d 65, 91 (Rojo), as “endors[ing]” a request for leave to amend where the amendment merely adds a cause of action under facts that have already been alleged and litigated. But unlike in Rojo in which new legal theories were sought to be alleged based on already pleaded facts, deSaulles’s proposed amendments involved facts pleaded for the first time just a month before trial—that she had been wrongfully terminated for exercising rights under the Labor Code.
Moreover, deSaulles’s request was procedurally deficient in that it was presented without a noticed motion and without satisfying rule 3.1324(b) of the California Rules of Court, which requires a declaration to accompany a motion to amend pleadings before trial that specifies not only the effect of the amendment and why it is necessary but when the facts giving rise to the amended allegations were discovered and the reasons why the request was not made earlier.
Finally, “amendments are usually allowed after summary judgments have been filed only to repair complaints that are legally insufficient—in other words, those that would be subject to a motion for judgment on the pleadings. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, fn. 5; Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625, disapproved on another ground in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6.) Appellants’ proposed amendment would not cure a legally insufficient complaint, but rather, would state a different theory of recovery. Such an amendment is impermissible. (Hobson v. Raychem Corp., supra, at p. 626.)” (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387-1388, fn. 2.) The same is true here.
In sum, the trial court acted well within its discretion in denying deSaulles’s request to amend her complaint to add a new basis for liability on new facts without compliance with procedural requirements and based on information known to her for two years or more just 31 days before trial and in the face of a summary judgment motion.
III. Summary Adjudication of deSaulles’s Failure-to-Accommodate Claim Was Proper
Because the trial court granted reconsideration of its prior summary adjudication order but affirmed the prior ruling after considering new evidence, we consider that evidence in our review of the initial order granting summary adjudication.
A. General Legal Framework and Standard of Review
FEHA protects employees from discrimination based on a wide variety of grounds. “Like the [Americans With Disabilities Act (ADA)]... the FEHA, section 12940, subdivision (a), prohibits discrimination based on an employee’s physical disability. Under the FEHA, it is unlawful ‘[f]or an employer, because of the... physical disability [or] medical condition... of any person, ... to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in the terms, conditions, or privileges of employment.’ [Citation.] Although section 12940 proscribes discrimination on the basis of an employee’s disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties.” (Green v. State of California (2007) 42 Cal.4th 254, 262; Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926.)
Thus, to establish a general claim of disability discrimination under the FEHA, the disabled plaintiff must “demonstrate that he or she was qualified for the position sought or held in the sense that he or she is able to perform the essential duties of the position with or without reasonable accommodation.” (Green v. State of California, supra, 42 Cal.4th at p. 267.) Where an employee claims discriminatory discharge under section 12940, subdivision (a), the employee has the burden of showing “(1) that he or she was discharged because of a disability; and (2) that he or she could perform the essential functions of the job with or without accommodation....” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 962 (Nadaf-Rahrov).)
As pertinent here, FEHA also imposes liability against an employer for “fail[ing] to make reasonable accommodation for the known physical... disability of an... employee” and for “fail[ing] to engage in a timely, good faith, interactive process with the employee... to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee... with a known physical... disability....” (§ 12940, subds. (m) & (n).) “The elements of a failure to accommodate claim are similar to the elements of a... discrimination claim.... The plaintiff must, in both cases, establish that he or she suffers from a disability covered by FEHA and that he or she is a qualified individual” whose disability the employer failed to reasonably accommodate. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen); Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.) An employer is required to accommodate only a “known” disability. (§ 12940, subd. (m).) “[A]n employer ‘knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as through a third party or by observation.” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 887.) For a failure-to-accommodate claim, the plaintiff need not show that an adverse employment action was taken. (Jensen, supra, 85 Cal.App.4th at p. 256.) “ ‘Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]’ [Citations.]” (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.)
"The term 'reasonable accommodation' is defined in the FEHA regulations only by means of example: ‘ “Reasonable accommodation” may include either of the following: [¶] (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. [¶] (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modification of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.’ (§ 12926, subd. (n); see Cal. Code Regs., tit. 2, § 7293.9, subd. (a); accord, 42 U.S.C. § 12111(9).)” (Scotch v. Art institute of California (2009) 173 Cal.App.4th 986, 1010 (Scotch).)
The employer is not obligated to choose the preferred accommodation or the one the employee seeks. (Soldinger v. Northwest Airlines, Inc. (1996) 51 Cal.App.4th 345, 370.) Rather, “ ‘ “the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the [one] that is easier for it to provide.” [Citation.] As the Supreme Court has held... an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. [Citation.]’ [Citations.]” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228, fn. omitted.)
In Nadaf-Rahrov, the court of appeal held that a cause of action for either failure to accommodate (§ 12940, subd. (m)) or failure to engage in the interactive process (§ 12940, subd. (n)) requires a showing by the employee that he or she was a “qualified individual with a disability” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 963) in that he or she was able with reasonable accommodation to perform the essential functions of the job held or desired. (Id. at pp. 975-976.) It further defined a reasonable accommodation as “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” (Id. at p. 974; see also Scotch, supra, 173 Cal.App.4th at p. 1010.) Finally, it placed on the plaintiff the burden of proof on these issues. (Nadaf-Rahrov, supra, at p. 978.)
Where the case has been decided below on summary judgment or adjudication, “ ‘ “[i]f the employer presents admissible evidence either that one or more of plaintiff’s prima facie elements is lacking, or that the adverse employment action was based on legitimate, nondiscriminatory factors, the employer will be entitled to summary judgment unless the plaintiff produces admissible evidence which raises a triable issue of fact material to the defendant’s showing....” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344.)
The general standard of review for summary judgment or adjudication is well established. The motion is well taken “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment [or adjudication] as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A moving defendant has met his burden of showing that a cause of action has no merit by establishing that one or more elements of the cause of action cannot be established or that there is a complete defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar); Lackner v. North (2006) 135 Cal.App.4th 1188, 1196; Code Civ. Proc., § 437c, subds. (f)(1) & (p)(2).) The defendant does this either through evidence that conclusively negates an element of the plaintiff’s cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar, supra, at p. 855.) Only if the defendant meets this burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense. (Id. at p. 850.) Thus, here, Hospital had the initial burden of showing that deSaulles could not establish that Hospital failed to provide a reasonable accommodation for her disability or medical condition or to engage in a good faith interactive process. (Scotch, supra, 173 Cal.App.4th at p. 1005; Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 984-985.)
We independently review an order granting summary judgment or adjudication, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768; Lackner v. North, supra, 135 Cal.App.4th at p. 1196.) In performing our independent review, “we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in his favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438.)
In determining whether there are triable issues of fact, we consider all the evidence set forth by the parties, except that to which objections have been made and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) In construing the evidence the moving party’s showing is “strictly scrutin[ized]” while the opposing party’s showing is viewed “liberally.” (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768.) Any doubts about whether the motion should have been granted “should be resolved in favor of the party opposing the motion.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Notwithstanding the liberality afforded to a plaintiff’s showing in opposition to summary judgment, his or her evidence remains subject to close examination. (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) There is a triable issue of material fact “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield, Co., supra, 25 Cal.4th at p. 850, fn. omitted.) “Moreover, plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of [material] fact; nor do uncorroborated and self-serving declarations. [Citations.]” (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 433.)
In performing our review, we are not bound by the trial court‘s stated rationale, but independently determine whether the record supports the trial court‘s conclusion that the plaintiff’s claim failed as a matter of law. (Scotch, supra, 173 Cal.App.4th at p. 1003.)
B. deSaulles Could Not Perform an Essential Function of the Registrar Position With or Without Accommodation
1. Failure to Accommodate
As noted, the court’s order granting summary adjudication of deSaulles’s cause of action for failure to accommodate found no triable issue regarding the following facts: 1) an essential function of the registrar position was face-to-face interaction with patients who might suffer from acute infections; 2) Hospital interpreted deSaulles’s doctor’s notes reasonably, and it was deSaulles’s duty to provide any needed clarification; 3) she rejected offers of reasonable accommodation based on her own scheduling preferences; 4) she refused to have her doctor review the positions offered; 5) her suggested accommodations were infeasible; and 6) she caused the breakdown in the interactive process.
On appeal, deSaulles contends that disputed issues of material fact precluded summary adjudication of the cause of action, including on the question whether direct patient contact was an essential function of the registrar position, the scope of her work limitations as affecting her ability to perform essential functions of the job, the reasonableness of the accommodations offered, and the cause of the breakdown in the interactive process.
As we have observed, a disabled plaintiff pursuing a cause of action for failure to accommodate must demonstrate that he or she is qualified to perform the essential functions of the position held or desired with or without a reasonable accommodation, and that the employer failed to reasonably accommodate the restrictions mandated by the plaintiff’s disability. (Nadaf-Rahrov, supra, at pp. 964-965, 975-978, 981-982; Scotch, supra, 173 Cal.App.4th at pp. 1009-1010; Green v. State of California, supra, 42 Cal.4th at p. 262 [employer not liable for disability discrimination under FEHA unless employee was able to perform essential functions of the job with or without reasonable accommodation].) Therefore, the trial court did not err in granting summary adjudication if Hospital met its burden of demonstrating that deSaulles could not establish any one of these elements and she, in turn, failed to demonstrate a triable issue of material fact concerning that element.
Not every illness qualifies as a disability under FEHA but there is no dispute here that deSaulles was disabled as she had a medical condition that was a “health impairment related to or [closely] associated with a diagnosis of cancer or a record or history of cancer” (§ 12926, subd. (h)(1)), though she did not specifically communicate this to Hospital until on or about November 10, 2005. This disclosure led to a meeting eight days later in which she was first asked for a doctor’s certification about her medical restrictions.
We turn our focus to the issue whether deSaulles was a qualified individual in that she could perform the essential functions of the registrar job with or without reasonable accommodation. 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. [¶] [And] (C)... [T]he incumbent in the position is hired for his or her expertise or ability to perform the particular [highly specialized] function.” (§ 12926, 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. [¶]... [¶] (F) The work experience of past incumbents in the job. [¶] [And] (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 do so was an essential function of the plaintiff’s nursing job]; Peters v. City of Mauston (7th Cir. 2002) 311 F.3d 835, 845 [shifting responsibility to lift heavier items to coworkers is not a reasonable accommodation, if heavy lifting is an essential job requirement].) Job restructuring may be a reasonable accommodation but employers are not required to exempt employees from performing essential job functions or to reallocate essential functions to other employees. (Dark v. Curry County (9th Cir. 2006) 451 F.3d 1078, 1089.)
The definition of “essential functions” under the 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 (Raine).)
Thus, “ ‘[w]hether a function is essential is evaluated on a case-by-case basis by examining a number of factors.’ [Citation.]” (D’Angelo v. Conagra Foods, Inc. (11th Cir. 2005) 422 F.3d 1220, 1230.) The determination is “highly fact specific” and “ ‘should be based upon more than statements in a job description and should reflect the actual functioning and circumstances of the particular enterprise involved.’ ” (Hoskins v. Oakland County Sheriff’s Dept. (6th Cir. 2000) 227 F.3d 719, 726; Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 967, fn. 6 [question whether job duty is essential function of the position ordinarily a question of fact].)
Hospital contended below that direct, face-to-face contact with patients, some of whom may be suffering from acute viral, bacterial, or fungal infections, was an essential function of the registrar position. It offered undisputed evidence that registrars perform the function of registering patients, which generally and preferably is done in a face-to-face setting in order for the registrar to interview and gather accurate information from patients; provide them with information and documentation about billing and other issues regarding their stay in the hospital; obtain their signatures on financial documents; and place identification wristbands on them. The patient-registering function was within the ambit of the registrar’s duties and was expected to be performed, if needed, whether one worked in the emergency room, in inpatient services, in the Arcade, or in census and no matter what shift. Some assignments and some shifts were more likely than others to require this direct patient contact, or to do so with more frequency. But all registrars were required to be able to have direct contact with patients, some of whom may be suffering from acute infections, as dictated by Hospital’s business needs. Hospital also established without dispute that it was not always possible to identify upon admission those patients who may be suffering from acute infections and it therefore could not always prevent a registrar's exposure to such patients in the emergency room or otherwise.
In particular, inpatient registrars working the night shift, such as deSaulles, were required to cover breaks and heavy patient volume in the emergency room as needed because of low staffing during the night in other areas of the hospital and high patient volume in the emergency room. And because patients are sometimes admitted to the hospital without a clear or certain diagnosis, it is not always possible to prevent a registrar’s contact with patients who may be suffering from acute infections. Such a condition may take 24 hours or longer to diagnose. Moreover, sometimes patients are admitted to the hospital for a noninfectious condition and it is only later discovered that they are also suffering from an infection. Patients with weakened immune systems can also develop infections after they are admitted to the hospital. Patients freely use Hospital’s facilities, along with employees, who may therefore be exposed to patients who may be suffering from acute infections, the very proscription ordered by deSaulles's own doctor. Although not all registrars were trained at all times in the emergency room, direct patient contact that might expose a registrar to a patient suffering from an acute infection was also required, as needed, of registrars working in all locations, on all shifts. There were no registrar positions that were never expected to have some direct patient contact at some point, whether in the emergency room or elsewhere. And while deSaulles was employed at Hospital, the workstations for all night inpatient registrars were moved into the emergency room to meet staffing needs.
Although registrar contact with patients who might be suffering from acute viral, bacterial, or fungal infections was not limited to work in the emergency room, deSaulles offered evidence that there was likely a higher concentration of such patients there. She also offered evidence that she, and a few others, had worked registrar shifts during which no patient contact had been required and that registrars sometimes covered for one another in the emergency room and in situations that required direct contact with patients, like going into their rooms. And sometimes when a patient was registered through the emergency room during one of deSaulles’s night shifts, she performed her duties over the phone and used a tube system for the transfer of documents. If a patient was experiencing trauma, a nurse might place the identification wristband on the patient at bedside, instead of a registrar performing this function. deSaulles was told in her pre-employment interview that work in the emergency room would occasionally be required but she was also told that patient contact and interaction was an important part of the job and that night, inpatient registrars were required to cover the emergency room as needed. The existing registrar job description, which deSaulles did not see before later being engaged in the interactive process, did not explicitly state that direct patient contact and interaction was required but this was reasonably assumed by the stated job duties of “perform[ing] registration/transfer/discharge functions” that required the registrar to “interview and gather information from the patient” and “obtain necessary signatures on financial documents” and requirements that included correctable hearing “to achieve the ability to hear and understand voices in person and over the telephone”
deSaulles also presented evidence that Hospital had temporarily accommodated a registrar in the past who could not perform excessive walking while pregnant by allowing her to work primarily in the back office, which was away from patients. But even that employee occasionally worked in the emergency room during her accommodation. deSaulles also presented evidence that a specific registrar on the evening shift did not work in the emergency room. But the undisputed evidence was that there was sufficient staffing coverage on that shift and there was no evidence that the registrar did not have patient contact in other locations of the hospital while performing her duties. The same is true for registrars who did not work in the emergency room because they had not yet been trained there but would be in due course.
We have little difficulty on this record concluding, after consideration of all pertinent and regulatory factors, that there is no triable issue of material fact on the question whether direct interaction and contact with patients, some of whom might be suffering from acute viral, bacterial, or fungal infections, was an essential function of the registrar position. The evidence offered by deSaulles to dispute this was subjective, situational, and anecdotal and none of it actually disputed that direct patient contact with potentially acutely infectious patients was an essential job function, whether in the emergency room or in other areas of the Hospital and regardless of shift or frequency of the contact. That the written job description did not expressly state that face-to-face contact with patients who might be suffering from acute infections was required does not suggest that patient contact, even if only occasional, was not required as that is reasonably assumed from the inherent nature of registering patients that is apparent from the description and some of the related duties that were expressly described. (Mason v. Avaya Communications, Inc. (10th Cir. 2004) 357 F.3d 1114, 1119-1122 [given need to be present at work to be supervised and to participate in teamwork not dispelled by unremarkable absence of this assumed requirement in job description].) And the suggestion that others could or did work in the emergency room or elsewhere requiring patient contact in place of deSaulles during her shift goes only to the possibility of job restructuring, not disputing whether this contact is an essential function of the registrar position. (Phelps v. Optima Health, Inc., supra, 251 F.3d at p. 26.) Indeed, the very argument that the function could be assigned to others supports that it is an essential one. (Mason v. Avaya Communications, Inc., supra, at p. 1121.)
Contrary to deSaulles’s contention on reply, we need not reach the affirmative defense available to a defendant under section 12940, subdivision (a)(1), which provides for a leave of absence as an accommodation when a disabled employee cannot safely perform a job’s essential functions, to so conclude. Nor do we need to reach the question whether any accommodations to allow deSaulles to avoid patient contact would have imposed an undue hardship on Hospital, another affirmative defense under FEHA. (§ 12940, subd. (m).)
Having concluded that there was no disputed issue of fact on the question whether direct contact with patients, some of whom may be suffering from acute infections, was an essential function of the registrar position, we now turn to whether there was a disputed issue of fact about deSaulles being able to perform this function with or without reasonable accommodation.
The undisputed evidence was that deSaulles, per her doctor's first order, was restricted from having contact with "ill patients." Her second doctor's note was more narrow but still precluded her from having contact with patients suffering from acute viral, bacterial, or fungal infections. Because Hospital established without dispute that it could not always identify patients who were suffering from such infections at the time of admission so as to preclude contact with them by a registrar, deSaulles's explicit work restrictions, taken at face value, precluded her from having direct contact with patients in order to register theman essential job functionwhether in the emergency room or elsewhere.
Despite her arguments on appeal that Hospital's literal interpretation of her doctor's notes was unreasonable and that they should have been understood to preclude only her work in the emergency room, the breadth of deSaulles's work restrictions as conveyed by the notes cannot be disputed. deSaulles herself said in deposition testimony that she understood her restrictions as precluding her from being around people who were ""infectious, " meaning people suffering from the flu or viruses that she could catch. She admitted she was unable to work not only in the emergency room but also in the Arcade. And she also conceded that she couldn't go into patients' rooms or otherwise have contact with "ill patients." She acknowledged she would also have to generally avoid patients, "watch out for everyone" in the hospital hallways and "take care not to go to the bathroom" while at work.
Moreover, if clarification of her doctor's restrictions was needed, it was up to deSaulles, not Hospital, to provide it. (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443 [employee cannot expect employer to read his or her doctor's mind regarding the specifics of employee's medical restrictions]; Steffes v. Stepan Company (7th Cir. 1998) 144 F.3d 1070, 1072-1073 [obligation fell to employee to update or clarify doctor's work restrictions given their "blanket nature"]; Templeton v. Neodata Services, Inc. (10th Cir. 1998) 162 F.3d 617, 619 [employer not liable for failure to provide reasonable accommodation where employee fails to clarify medical restrictions].) Hospital was not obliged to seek independent medical advice about the meaning of the notes despite the medical nature of its business and deSaulles cites no authority that dictates otherwise.
Accordingly, it is without dispute that deSaulles could not perform an essential job function without accommodation. This leaves the question whether she could do so with reasonable accommodation, raising the further question whether the accommodations deSaulles proposed were reasonable.
In an effort to accommodate deSaulles as a registrar, Hospital offered her two different registrar positions during the interactive process. Both positions would still have required some direct patient contact, including possibly but occasionally in the emergency room, and for that reason, Hospital requested deSaulles to get a release from her doctor if she chose to accept either one. She rejected the positions, in part for her own scheduling preferences and in part because she refused to further consult with her doctor about her work restrictions. That these positions may not have fit deSaulles's preferred scheduling does not make them unreasonable accommodations. (Phelps v. Optima Health, Inc., supra, 251 F.3d at pp. 24, 28 [employee's refusal of accommodations based on scheduling preferences among other things demonstrated her inflexibility, precluding employer's liability under ADA]; Webster v. Methodist Occupational Health Centers (7th Cir. 1998) 141 F.3d 1236, 1238 [employee's insistence on position and shift most to her liking was not participation in interactive process, precluding employer liability under ADA].) Indeed, an employer is not obligated to provide the accommodation the employee wants or even the best accommodation, only a reasonable one. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 228.) And deSaulles refused to further consult with her doctor to ascertain or clarify whether these positions would reasonably and effectively have accommodated her work restrictions, obstructing the interactive process. (Beck v. University of Wisconsin Bd. of Regents (7th Cir. 1996) 75 F.3d 1130, 1135 [employee cannot demonstrate employer's liability under ADA where employee obstructed interactive process]; Templeton v. Neodata Services, Inc., supra, 162 F.3d at p. 619 [employer cannot be held liable for failure to accommodate where employee fails to engage in interactive process by clarifying extent of medical restrictions]; Allen v. Pacific Bell (9th Cir. 2003) 348 F.3d 1113, 1115 [no further duty to engage in interactive process to identify reasonable accommodations to plaintiff's existing position where employee refused to submit additional medical information]; Steffes v. Stepan Company, supra, 144 F.3d at pp. 1072-1073 [same].)
Turning to the accommodations suggested by deSaulles, her first proposal had her retaining her existing per diem, night inpatient registrar position with the omission of the requirement that she take shifts or cover meal or rest breaks in the emergency room. This amounts to the elimination of an essential job function--not a reasonable accommodation. (Dark v. Curry County, supra, 451 F.3d at p. 1089; Peters v. City of Mauston, supra, 311 F.3d at p. 845.) This would also have placed a heavier burden on other employees, which the law does not require an employer to do in an effort to accommodate a disabled employee. (Turco v. Hoechst Celanese Corp. (5th Cir. 1996) 101 F.3d 1090, 1094.) And the suggestion did not account for the planned relocation of night registrars to the emergency room.
Her proposal to work alternative weekend day and evening shifts was not a reasonable accommodation either because it too required patient contact in the Arcade or patients' rooms, if not the emergency room. This proposed accommodation would therefore not have been effective given deSaulles's work limitations and her refusal to seek further clarification about these restrictions from her doctor. Moreover, Hospital offered undisputed evidence that the weekend day shift proposed was already filled by another employee, whom Hospital was not required to bump in order to accommodate deSaulles. (McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 [employer not required to create new positions or bump other employees to accommodate disabled employee]; Raine, supra, 135 Cal.App.4th at pp. 1223, 1227 [responsibility to reassign disabled employee does not require creating new job, moving another employee, promoting disabled employee, or violating another employee's rights].)
deSaulles's proposed modified work schedule in inpatient services and census likewise still would have required patient contact in the Arcade or emergency room. Moreover, this proposed shift did not exist and would have required reduction of staffing on existing shifts, greatly disrupting the registrar schedule that Hospital maintained. Hospital was not required to create such a new position in order to offer deSaulles a reasonable accommodation, making the proposal unreasonable. (McCullah v. Southern Cal. Gas Co, supra, 82 Cal.App.4th at p. 501; Raine, supra, 135 Cal.App.4th at pp. 1223, 1227; Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389 [employer must reassign disabled employee only if an already funded, vacant position at the same level exists].) The same was true of her proposal for job restructuring by which Hospital would have created an entirely new registrar position involving purely administrative functions that eliminated the element of patient contact on shifts that deSaulles would work at agreed upon dates and times.
In short, Hospital demonstrated that all of deSaulles's proposed accommodations were unreasonable or infeasible and she did not create a triable issue of material fact to dispute this. Accordingly, on this record, Hospital carried its burden of showing that deSaulles could not establish that she could perform the essential functions of the registrar position with or without accommodation required elements for a claim of failure to accommodate. (Nadaf-Rahrov, supra, 166 Cal.App.4th at pp. 964-965, 975-978, 981-982; Scotch, supra, 173 Cal.App.4th at pp. 1009-1010; Green v. State of California, supra, 42 Cal.4th at p. 262.) It follows that her cause of action for failure to accommodate had no merit.
2. Failure to Engage in the Interactive Process
As noted, FEHA imposes an additional duty on the employer to “engage in a timely, good faith, interactive process with the employee... to determine effective reasonable accommodations.” (§ 12940, subd. (n).) “While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) The elements of a cause of action for failure to do so are: 1) the plaintiff has a disability covered by FEHA and known to the defendant; 2) the plaintiff requested a reasonable accommodation for his or her disability so that he or she could perform the essential functions of the job; 3) the plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that he or she could perform the essential job requirements; 4) the defendant failed to participate in a timely, good faith interactive process to determine whether reasonable accommodation could be made; 5) resulting in harm to the plaintiff. (Gelfo, supra, 140 Cal.App.4th at pp. 61-62; § 12940, subd. (n); CACI No. 2546.)
In addition, the employee must have been damaged by the employer’s failure because there was, in fact, an objectively available reasonable accommodation that would have been identified and offered during the interactive process and that would have enabled the employee to perform the essential functions of the position. (Scotch, supra, 173 Cal.App.4th at pp. 995, 1018-1019; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.) Once the parties have pursued litigation, the plaintiff may identify through the discovery process accommodations that would have been reasonable and effective to permit him or her to perform the essential functions of the job held or desired. In other words, the employee need not have identified those reasonable and effective accommodations before filing suit in order to prevail on a cause of action for failure to engage in the interactive process. (Scotch, supra, at pp. 1018-1020.)
Accordingly, the court here may have erred by concluding that it could not consider any reasonable accommodations only identified by deSaulles in opposition to summary judgment and not during the interactive process itself. But any error was not prejudicial because deSaulles did not demonstrate that installation of glass screens in the emergency room would have effectively and reasonably accommodated her need as a registrar to avoid all contact with patients who have acute infections and she did not actually identify or propose any specific mechanical processes affecting air flow in the emergency room or elsewhere in the hospital that could have been performed and that would have or might have effectively and reasonably accommodated her work limitations. She therefore did not identify a “reasonable accommodation that was objectively available during the interactive process.” (Scotch, supra, 173 Cal.App.4th at p. 1019.)
“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. [Citation.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1195.) The 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.” [Citation.]’ ” (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 984.)
It is the employee’s burden to trigger the interactive process by informing the employer that accommodation under FEHA is needed and desired (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1384), and once that process is triggered, both parties must proceed in good faith to keep the lines of communication open and to exchange information in seeking the requested accommodation, avoiding obstruction of the process. (Jensen, supra, 85 Cal.App.4th at pp. 265-266; Scotch, supra, 173 Cal.App.4th at p. 1013.) An employer is not liable for failing to accommodate a disability of which it had no knowledge. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.) “It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.” (Jensen, supra, 85 Cal.App.4th at p. 266.)
When an employee sues the employer alleging violation of the duty to engage in the interactive process, the court will “look at the facts with regard to whether the breakdown in the informal, interactive process was due to [the employee or the employer]” (Jensen, supra, 85 Cal.App.4that p. 265) to “isolate the cause of the breakdown and then assign responsibility.” (Beck v. University of Wisconsin Bd. of Regent, supra, 75 F.3d at p. 1135.) “Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Gelfo, supra, 140 Cal.App.4th at p. 62, fn. 22; Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 985.)
But we need not reach the question of which party caused the breakdown of the interactive process because as we have observed, a cause of action for failure to engage in the interactive process requires the employee to demonstrate, among other things, that he or she could perform the essential functions of the position with or without reasonable accommodation. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 983; Scotch, supra, 173 Cal.App.4th at pp. 1018-1019.) As we have demonstrated with respect to deSaulles’s claim for failure to accommodate, on this record, Hospital established that she could not perform the essential functions of the registrar job with or without reasonable accommodation, and she failed to demonstrate the existence of a triable issue of material fact to dispute this. Her claim for failure to engage in the interactive process therefore must, on this record, fall along with her claim for failure to accommodate.
We note, however, the undisputed evidence that deSaulles refused to return to her doctor to clarify her work limitations and she explicitly stated in writing that she considered it unnecessary to further engage in the interactive process, rigidly and inflexibly demanding instead that Hospital accede to her demands for accommodation.
Moreover, it is undisputed that Hospital offered deSaulles as an accommodation reassignment to a new and vacant position—telephone operator—for which she was qualified in that her medical restrictions did not preclude her from performing its essential functions but that deSaulles rejected this offer based on her own scheduling preferences. It follows that her claim for failure to engage in the interactive process had no merit for this reason as well. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at p. 229 [employer cannot be held liable for failure to engage in the interactive process when employee was offered a reasonable accommodation]; see also Watkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 829 [same].)
C. The Cause of Action Did Not Plead Facts Supporting a Separate Claim For Discrimination Under Section 12940, Subdivision (a) as Distinct From Hospital’s Failure to Accommodate or Engage in the Interactive Process
As part of her opposition to Hospital’s motion, deSaulles contended that her first cause of action for failure to accommodate her disability or medical condition also alleged a separate claim for disability discrimination under section 12940, subdivision (a) that Hospital had not addressed. The court rejected this interpretation of her pleading, concluding that the cause of action contained no specific allegations of disability discrimination other than allegations regarding a failure to accommodate, which also subsumed a failure to engage in the interactive process. These claims, though species of disability discrimination, are separate and distinct causes of action as provided under section 12940, subdivisions (m) and (n), respectively.
The elements of such a claim are that (1) the plaintiff has 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 U.S.C. § 12101 et seq., that she is a qualified individual with a disability) (Green v. State of California, supra, 42 Cal.4th at p. 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.)
deSaulles reprises her argument that the cause of action, though labeled only as one for failure to accommodate, actually also pleads a separate cause of action for disability discrimination for factual claims outside of the failure to accommodate or engage in the interactive process. She specifically points to paragraphs 43, 52, 54, and 55 of the complaint in this regard, noting that section 12940, subdivision (a) prohibits discrimination separate and apart from its requirements to prevent discrimination (§ 12940, subd. (k)), to make reasonable accommodation (§ 12940, subd. (m)), and to engage in the interactive process (§ 12940, subd. (n)).
Paragraph 43 of the complaint is contained within the preliminary allegations incorporated into deSaulles’s first cause of action, labeled failure to accommodate. It alleges that the action “is brought pursuant to the FEHA, [section] 12940 of the California Government Code, which prohibits discrimination against a person in the terms, conditions, or privileges of employment on the basis of, among other, protected categories, a person’s physical disability and/or medical condition, and the corresponding regulations of the California DFEH.” As incorporated in the first cause of action, there is nothing about this conclusory statement of the law, which contains no underlying facts, that alleges a cause of action for disability discrimination separate from deSaulles’s failure-to-accommodate claim.
Paragraph 52 is contained within the first cause of action for failure to accommodate and it states that from “January 6, 2006[, ] until the present, [Hospital] failed to reasonably accommodate [deSaulles’s] needs based on her physical disability and/or medical condition.” It goes on to list factual allegations of Hospital’s conduct as specific examples of its alleged failure to accommodate that included putting deSaulles on a forced leave of absence, wrongfully asserting an inability to accommodate her as a pretext to discriminate or retaliate against her, recasting her forced leave of absence as medical leave, failing to engage in a good faith interactive process, and failing to reasonably accommodate her by not offering accommodations that had been offered to other employees. All of these factual allegations are characterized by the complaint itself as ways in which Hospital failed to accommodate deSaulles, not as factual elements of a separate discrimination claim. None of the allegations are sufficient to plead facts supporting a separate and distinct cause of action for disability discrimination beyond the failure to accommodate or engage in the interactive process.
Paragraphs 54 and 55 are likewise contained within the first cause of action for failure to accommodate. Paragraph 54 references the same factual allegations just mentioned of Hospital’s failure to accommodate and pleads that this conduct “constituted unlawful discrimination in employment on account of physical disability and/or medical condition, in violation of [FEHA].” Although this conclusory allegation charges discrimination, it includes no facts to support a claim apart from the failure to accommodate and failure to engage in the interactive process that are alleged. Paragraph 55 alleges that Hospital “subjected [deSaulles] to other forms of harassment and discrimination because of her disability and/or medical condition.” Again, no additional facts supporting any distinct and separate claims of disability discrimination are pleaded.
Nor were any additional and distinct discrimination claims mentioned in deSaulles’s three complaints filed with the DFEH, apart from the failure to accommodate, failure to engage in the interactive process, retaliation, and wrongful termination causes of action specifically pleaded in the complaint. Before filing a civil action alleging FEHA violations, an employee must exhaust his or her administrative remedies with DFEH. Specifically, the employee must file an administrative complaint with DFEH identifying the conduct alleged to violate FEHA. At the conclusion of the administrative process, which may or may not include an investigation or administrative remedies, DFEH generally issues the employee a right-to-sue notice, as happened here three times. (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 116.)
Recently, in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir), the court discussed the permissible scope of a civil action for FEHA violations. Specifically, Nazir adopted the following standard used to determine the permissible scope for civil actions under title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) after an employee files an administrative complaint with the federal Equal Employment Opportunity Commission (EEOC): “ ‘The administrative exhaustion requirement is satisfied if the allegations of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination “like and reasonably related to” the allegations of the EEOC charge.’ ” (Nazir, at p. 266, quoting Chin et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2010) ¶ 16:195 et seq., p. 16- 30 (rev. # 1, 2010), italics omitted.) And the administrative charges are to be construed liberally as they are often drafted by claimants themselves without the assistance of counsel. It is sufficient if the administrative agency is apprised in general terms of the “ ‘ “alleged discriminatory parties and the alleged discriminatory acts. ” ’ ” (Nazir, supra, 178 Cal.App.4th at pp. 266-267.) A claimant may proceed in litigation on a claim not explicitly set out in an administrative charge if the claim is “ ‘like’ ” or “ ‘reasonably related to’ ” an explicit charge and could reasonably be expected to grow out of an administrative investigation of the charge. (Ibid.; see also Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1064-1065 and cases discussed there.)
Applying this liberal construction standard to deSaulles’s DFEH complaints, which generated no investigation by DFEH, confirms our conclusion that her first cause of action could not proceed as anything other than a claim for failure to accommodate, which, by affording a liberal construction, encompassed her separate claim for failure to engage in the interactive process. (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424 [failure to engage in interactive process under § 12940, subd. (n) is separate violation from failure to accommodate under § 12940, subd. (m)].) Her first DFEH complaint filed on July 17, 2006, after she was terminated alleged continuing discrimination by Hospital in that from February 14, 2006, on, she was “denied accommodation” because of her physical disability (cancer) by Hospital’s “inability to accommodate the work restrictions advised by [her] treating oncologist.” Her second DFEH complaint filed January 17, 2007, alleged that she was fired because of her medical condition in that Hospital refused “to accommodate [her] work restrictions advised by [her] treating oncologist.” Her third DFEH complaint also filed on January 17, 2007, alleged retaliation by Hospital having fired her for her “filing of a grievance, two appeals and then a DFEH complaint as well as an unemployment insurance appeal.” Her grievance, two appeals, and prior DFEH complaint collectively concerned Hospital’s alleged failure to accommodate and failure to engage in the interactive process, in addition to other matters not pertinent to a discrimination claim.
Broadly construed, the first and second of these DFEH complaints relate to Hospital’s failure to accommodate, as claimed in deSaulles’s first cause of action, as well as wrongful termination and retaliation as separately alleged causes of action in her complaint. The third DFEH complaint also relates to deSaulles’s separately pleaded causes of action for retaliation and wrongful termination. But there is nothing stated in these administrative charges that alleges, alludes to, or would likely have led to the revelation of discriminatory acts that would support a distinct and separate claim for disability discrimination under section 12940, subdivision (a) in addition to the specifically pleaded failure to accommodate, failure to engage in the interactive process, retaliation, and wrongful termination. And we finally observe that deSaulles did not attempt to state such a distinct cause of action in her request to amend her complaint.
Accordingly, we conclude that the court did not err by its determination that deSaulles’s first cause of action did not allege a distinct claim for discrimination under section 12940, subdivision (a) separate and apart from her claims for failure to accommodate and failure to engage in the interactive process. And because the pleading delimited the scope of the summary judgment or adjudication proceedings, deSaulles could not resist Hospital’s motion by offering evidence demonstrating a triable issue of fact on another separate and unpleaded theory—disability discrimination by lack of individualized treatment or disparate treatment relative to other employees. (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225; Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576.)
It is accordingly irrelevant whether there was evidence before the court that created a triable issue of material fact on any independent but unpleaded claim for disability discrimination. We therefore need not and do not address the parties’ competing claims on this issue.
D. Review of the Court’s Orders Affirming Summary Adjudication on Reconsideration and Denying A New Trial is Redundant
deSaulles challenges the court’s ruling granting reconsideration of its order summarily adjudicating her failure-to-accommodate cause of action but affirming the prior order. As noted, on reconsideration the court considered new evidence deSaulles had been unable to obtain when initially opposing Hospital’s motion for summary judgment, evidence we have considered in reviewing the summary adjudication order. She also challenges the court’s denial of her motion for new trial after the grant of summary adjudication of her failure-to-accommodate claim, raising the same arguments used to challenge that adjudication and offering the same new evidence. Because we have already considered and rejected these arguments in addressing the propriety of the grant of summary adjudication, which review took into account the newly offered evidence, these additional challenges to later rulings add nothing on review and are redundant. We accordingly reject these challenges for the same reasons previously discussed.
An order challenging summary judgment, and presumably summary adjudication, is properly challenged by a motion for new trial. (Aguilar, supra, 25 Cal.4th at p. 858.) “ ‘This is so, even though, strictly speaking, “summary judgment... is a determination that there shall be no trial at all.” ’ [Citations.] The new trial motion may seek reversal of the summary judgment on the ground that there are triable issues of fact. [Citation.] In addition, the motion may assert that the summary judgment should be reversed because there is ‘[n]ewly discovered evidence’ (Code Civ. Proc., § 657, subd. 4). [Citation.] [¶] The determinations underlying the new trial order dictate our standard of review. (Aguilar, supra, 25 Cal.4th at p. 859.) To the extent the order relies on the resolution of a question of law, including the existence of triable issues of fact, we examine the matter de novo. [Citations.] To the extent the order relies on the assertion of newly discovered evidence, we examine the order for an abuse of discretion. [Citation.]” (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1504-1505.) To prevail on a motion for new trial based on newly discovered evidence, the moving party must demonstrate that “ ‘(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the... party’s case.’ [Citation.]” (Id. at p. 1506; see also Code Civ. Proc., § 657, subd. 4.)
IV. The Effect of Summary Adjudication of the Failure-to-Accommodate Claim Was That deSaulles Could Not Establish Her Other Tort and Statutory Causes of Action at Trial Because of Matters Deemed Established
As noted, at trial, the court granted Hospital’s in limine motion number 1 excluding evidence and argument that it had failed to accommodate deSaulles’s work restrictions and had failed to engage in the interactive process in violation of FEHA. This, of course, was based on the court’s prior summary adjudication of deSaulles’s cause of action for failure to accommodate. (Code of Civ. Proc., § 437c, subd. (n)(1) [matters as to which summary adjudication granted “deemed to be established” at trial].)
As a result of the in limine ruling, the court then concluded that deSaulles would be unable to offer evidence that Hospital had retaliated against her for having asserted its violation of FEHA by failure to accommodate and to engage in the interactive process—the sole factual basis of her pleaded cause of action for retaliation. In other words, evidence that Hospital had failed to accommodate deSaulles would be excluded and that evidence was needed to establish deSaulles’s retaliation claim as pleaded. Without her retaliation claim, the court concluded that deSaulles’s causes of action for emotional distress were preempted by the exclusivity provisions of the Workers’ Compensation Act. (Lab. Code, §§ 3600, 3601; Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747; Jones v. Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367, 1382 [exclusivity provisions do not bar claims for emotional distress where employee has viable claims for discrimination or retaliation].) And it further concluded that without her pleaded FEHA violation for failure to accommodate, her cause of action for wrongful termination lacked a public policy that could be shown to have been violated. Because of these legal conclusions, the court in effect dismissed these four claims at trial before taking any evidence.
To establish a prima facie case of retaliation under FEHA, a plaintiff must show that he or she engaged in a protected activity, the employer subjected the employee to an adverse employment action, and a causal link existed between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042; § 12940, subd. (h).) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer does so, the presumption of retaliation disappears and the burden shifts back to the employee to prove intentional retaliation. (Yanowitz v. L’Oreal USA, Inc., supra, at p. 1042.)
“Apart from the terms of an express or implied employment contract, an employer has no right to terminate employment for a reason that contravenes fundamental public policy as expressed in a constitutional or statutory provision.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ross v. RagingWire Telecommunications, Inc., supra, 42 Cal.4th at pp. 931-932 [either party may terminate at will employment contract without a specified term, subject to exception that employer may not terminate employee for a reason that violates public policy of state].) A violation of FEHA may support the cause of action. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160-1161.)
deSaulles raises no objection to the procedural manner in which the court disposed of these statutory and tort claims at trial. We addressed this procedure in Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, concluding that while the trial court has inherent power to use in limine motions to dismiss claims, doing so risks due process violations because such motions are not substitutes for dispositive motions authorized by statute. (Id. at pp. 1593-1595.) Moreover, the effect of a court dismissing a cause of action through an in limine motion is sometimes an unnecessary reversal because “appellate courts are required to review a dispositive ruling on an in limine motion as if it were the product of a motion for nonsuit after opening statement”—a disfavored practice. (Id. at p. 1594.) “The standard of review in such cases requires that all inferences and conflicts in the evidence be resolved in favor of the losing party and against the judgment. [Citation.] In contrast, on appeal from a judgment following trial, appellate review favors the judgment. [Citation.] Thus, some cases will be subject to reversal where, had the trial court just taken the time to hold a trial, reversal would not be warranted. [Citation.]” (Id. at pp. 1594-1595) But “the perfunctory nature of the proceedings does not warrant reversal if the record shows that plaintiff could not have prevailed under any circumstances. [Citation.]” (Id. at p. 1595.)
On appeal, deSaulles summarily reprises her argument made below that in spite of the order granting summary adjudication, her causes of action for retaliation in violation of FEHA, negligent and intentional infliction of emotional distress, and wrongful termination in violation of public policy should have been tried because they rested on factual allegations that were different from, and therefore not affected by, the summary adjudication order. These allegations were that for the three months preceding Hospital’s accommodation offer of the telephone operator position on January 20, 2006, and out of a policy of resisting accommodation, it delayed engaging in the interactive process, ignored deSaulles’s requests to accommodate, asserted a policy of not engaging in the interactive process until a doctor’s note was produced, and continued scheduling her in the emergency room, all in violation of FEHA. This argument was premised on the notion that because the court’s prior order had determined that Hospital had accommodated deSaulles by offering her the telephone operator position in January 2006, it could not be held liable for failure to accommodate but its delay in making this accommodation for three months could still be actionable as the basis for liability with respect to deSaulles’s remaining statutory and tort causes of action.
deSaulles is mistaken. The factual allegations of her cause of action for failure to accommodate that was summarily adjudicated against her included all of the same complaints and allegations concerning Hospital’s conduct in the three months preceding its January 20, 2006 offer of reassignment to the telephone operator position. The effect of that adjudication was that all of these allegations were matters that were deemed to have been established against deSaulles, precluding them from forming the basis of actionable conduct via her remaining statutory and tort causes of action.
Moreover, as was deemed established by the summary adjudication order, Hospital’s conduct that preceded the offer of the telephone operator position did not constitute a failure to accommodate or engage in the interactive process. For one thing, deSaulles did not inform Hospital that she required accommodation under FEHA until on or about November 10, 2005, not October 13th. Her initial grievance indicated merely a vulnerability to illness based on past medical treatment but it did not sufficiently identify her disability or specific medical condition such that Hospital’s duty to accommodate or engage in the interactive process under FEHA was triggered. (Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at pp. 1248-1249 [medical forms indicating that plaintiff was ill or sick not sufficient to put employer on notice of disability or to trigger FEHA obligations]; Brundage v. Hahn (1997) 57 Cal.App.4th 228, 237 [vague or conclusory statements revealing unspecified incapacity insufficient to put employer on notice of obligations under FEHA].)
Upon receipt of specific facts that triggered this duty, Hospital met with deSaulles eight days later to engage in the interactive process, the initial steps of which were to review the essential functions of the registrar position and to request medical certification of deSaulles’s work restrictions, which Hospital was entitled to do, so as to enable it to identify reasonable accommodations. (E. E. O. C. v. Prevo’s Family Market, Inc. (6th Cir. 1998) 135 F.3d 1089, 1094-1095 [employer may request employee to undergo medical examination under ADA for legitimate business purposes, which include the protection of employee’s health and protection of other employees and general public and confirmation of employee’s word that he or she requires accommodation]; Kratzer v. Rockwell Collins, Inc. (8th Cir. 2005) 398 F.3d 1040, 1045 [employer could not provide appropriate accommodation in absence of updated medical evaluation, which employee failed to provide].) Any delay in the interactive process at that juncture was the result of deSaulles’s refusal to accept Hospital’s offer of an independent medical examination or to provide Hospital with a note from her doctor, neither of which occurred until January 4th or 5th, 2006. In that interim, Hospital placed deSaulles on leave so she could obtain medical information concerning her work restrictions and did so because she refused to work in the emergency room on her scheduled shifts. Placing deSaulles on temporary leave was reasonable pending Hospital’s receipt of information about her medical restrictions because it put her on hold so she could avoid being disciplined for her refusal to perform her job or for unscheduled absences that required Hospital to find coverage in her place. (Jensen, supra, 85 Cal.App.4th at p. 264 [unpaid leave is way to put a disabled employee on hold while the attempt to locate a permanent position is ongoing].)
Then, after receipt of deSaulles’s first doctor’s note on January 4 or 5, 2006, which specified that she could not have contact with “ill patients”—the majority of patients admitted to the Hospital—deSaulles was temporarily but reasonably accommodated by being placed on further leave, though involuntary, while Hospital attempted to identify available positions that might reasonably accommodate this broad work restriction. DeSaulles’s clarified work restrictions, received on or about January 17, 2006, still precluded her from contact with patients suffering from acute viral, bacterial, or fungal infections. These restrictions were more narrow and tailored, but they were still broad enough to keep deSaulles on leave pending Hospital’s identification of reasonable accommodations because the restrictions were reasonably interpreted to preclude patient contact—an essential function of the registrar position. Hospital offered the telephone operator position three days later.
These facts, even viewed in the light most favorable to deSaulles, do not give rise to liability under FEHA and therefore cannot form the basis of deSaulles’s claims for retaliation, infliction of emotional distress, and wrongful termination in violation of public policy. The court accordingly did not err by effectively dismissing the claims at trial in the wake of the prior order granting summary adjudication of deSaulles’s cause of action for failure to accommodate.
deSaulles offers a further undeveloped challenge to the court’s effective dismissal at trial of her remaining statutory and tort claims based on Miller v. Department of Corrections (2005) 36 Cal.4th 446, 473-477 (Miller). In a single paragraph, she alludes to Miller as authority for the precept that in certain circumstances, an employee who has complained of or opposed an employer’s conduct may bring a retaliation claim even when a court or jury subsequently determines that the underlying conduct by employer did not violate FEHA, as long as the employee acted in good faith. While Miller, citing Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 477 (Flait) [employer may not fire employee because he opposed discrimination against a fellow employee, even if he was mistaken and there was no discrimination], does contain this language, the context is distinguishable from the instant case.
Both Miller and Flait (as well as federal cases also cited by Miller) concerned factual settings in which whistle-blowing employees brought retaliation claims after they had complained of or opposed widespread and prevalent employment practices allegedly inflicted on or affecting other employees and that were asserted to have created a hostile work environment. In such a case, “the salutary purpose of encouraging open communication between employees and employers so that employers can take voluntary steps to remedy FEHA violations” is clear. (Miller, supra 34 Cal.4th at p. 475.) But this is a distinguishable circumstance from this case in which the employee’s engagement in protected activity was the assertion of claims that the employer failed to accommodate her and only her. If there was no failure to accommodate, as the court determined on summary adjudication, and these allegations were deemed to be established against the employee at trial, then the employee’s retaliation claim that is tethered to these allegations must also fail, regardless of her good faith. In any event, deSaulles did not sufficiently develop this argument on appeal to warrant a different result.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J.Elia, J.