The opinion
Filed 6/24/25; Certified for Publication 7/7/25 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KHELOUD ALLOS, D084062
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2022-
00009917-CU-OE-CTL)
POWAY UNIFIED SCHOOL DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael T. Smyth, Judge. Affirmed.
Dennis N. Brady, San Diego Employment Attorneys Group for Plaintiff
and Appellant.
Winet Patrick Gayer Creighton & Hanes, Jennifer S. Creighton, and
Erin N. Taylor for Defendant and Respondent.
Kheloud Allos filed suit against her former employer, Poway Unified
School District (PUSD), claiming violations of the Fair Employment and
Housing Act (Gov. Code, § 12900 et seq., FEHA) and the Labor Code based on
PUSD’s refusal to allow her to work exclusively from home. After the parties
engaged in discovery, PUSD filed a motion for summary judgment asserting
Allos’s claims were not actionable because they were barred by Government
Code section 855.4 and because Allos could not establish any triable issues of
material fact for her claims. 1 The trial court granted PUSD’s motion and
entered judgment in its favor. On appeal, Allos argues she did establish
triable issues of fact and that section 855.4 does not bar her claims. As we
explain, we reject Allos’s arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Allos began her career with PUSD in 2002, and in 2006 became a
Senior Business Systems Analyst, the position she held for the remainder of
her career. 2 When the COVID-19 pandemic shut down the school district’s
1 Subsequent undesignated statutory references are to the Government
Code.
2 PUSD’s job description for the position states: “Under the direction of
an assigned supervisor, develop, maintain, analyze and enhance advanced
computer systems to fulfill District needs; facilitate the computerized
collection, management, manipulation and distribution of data used for
analysis; train and provide technical support to District personnel in the
operation and enhancement of complex computer systems with Districtwide
applications.”
2
in-person operations in March 2020, Allos began working at home. After the
stay-at-home order was lifted later that year, Allos requested she be
permitted to continue working exclusively remotely. On October 15, 2020,
she submitted a doctor’s note to PUSD. The handwritten note stated Allos
“needs to work from home as much as possible due to COVID risk.” In her
deposition, Allos explained she asked for the note from her doctor, Elizabeth
Salada, to keep her elderly mother, whom she lived with, safe.
On October 28, 2020, Allos met with PUSD’s directors of human
resources and her union representative to discuss her doctor’s note. An
“Interactive Meeting Record” memorialized the meeting, and stated that
Allos would be accommodated by working in the office Monday through
Friday from 6:30 to 8:30 a.m., and teleworking the remainder of the day. The
record also indicated this accommodation would be in place for 30 days, and
that any team member could request another interactive meeting at any
time.
The job description also lists ten “representative duties” for the
position, and categorizes eight as “essential duties” including, for example,
“[d]evelop, maintain, analyze and enhance advanced computer systems to
fulfill District needs; modify existing programs to improve reporting and
record maintenance; implement changes and additions of policies and
procedures related to assigned activities; assure system access for new users;”
“[f]acilitate the computerized collection, management, manipulation and
distribution of data used for analysis; respond to document, report and data
requests from District personnel and outside agencies, compiling information
from various computer systems; assist with the development of information
analysis procedures;” “[c]oordinate District efforts to enhance assigned
systems; communicate with and train users on updates;” and “[t]rain and
provide technical support to District personnel in the operation of computer
systems; assist District personnel with troubleshooting, hardware upgrades,
purchasing software and database maintenance; prepare training and
informational materials for District personnel as directed; coordinate flow of
technical information between various District departments.”
3
In January 2021, Allos submitted a second note to PUSD from a nurse
practitioner within the same practice as Dr. Salada stating that Allos was the
primary caregiver for her mother, “who has advanced medical conditions
which cannot allow her to be by herself.” The note “recommend[ed] that
[Allos] work[] from home full time (100%) of the time in order to
accommodate her personal life events going on right now.” On February 15,
2021, Allos submitted a third note, this one signed by Dr. Salada, which
stated Allos needed to work from home full time due to her own medical
history, which put her at “high risk for developing allergies/infections post
vaccination.” The note did not explain Allos’s past medical history.
At her deposition, Allos stated that she wanted an accommodation to
work from home because her age (she was 65 years old at the time), high
blood pressure, and obesity increased her risk from COVID-19. In addition,
she testified that she was unable to be vaccinated for COVID-19 because in
2012 she had an allergic reaction to the Tdap vaccine. 3 In her declaration
submitted in support of her opposition to PUSD’s motion for summary
judgment, Allos stated that after the Tdap vaccine she suffered pain,
swelling, and redness in her arm that lasted about 10 days, which her doctor
concluded was an allergic reaction.
On April 23, 2021, PUSD conducted another interactive meeting with
Allos. The meeting attendees included Allos; the district’s human resource
director, Brian Morris; its associate superintendent of personnel support
services; an attorney for the district; Allos’s union representative; and Allos’s
attorney, Dustin Pinder. At the meeting, Morris explained that all PUSD
employees were expected to return to the office by May 3, 2021. Morris also
offered Allos an enclosed office, rather than her cubicle, to protect her from
3 Tdap is a combined vaccine for tetanus, diphtheria, and pertussis.
4
exposure to the virus. Morris explained the photo room, where Allos took
pictures of new employees for identification badges, could be converted to a
private office, and that it was located a short distance from a restroom and on
the same floor as Allos’s department, personnel support services. Allos
responded that she did “not feel comfortable in the office and ‘[would] have
fear every day’ ” of “potentially contracting COVID-19 in the workplace as a
result of not being able to get a COVID-19 vaccine.”
Pinder added that Allos could not be vaccinated because she had a
vaccine allergy, which was a disability the district was required to
accommodate. Pinder also asserted the district’s decision to hold an
interactive meeting with Allos established she was disabled. The district’s
attorney responded that the meeting was not an acknowledgment of a
disability, and that the district offered interactive meetings with any
employee who reported a medical reason that prevented them from returning
to in-person work. The attorney added the process was a “vehicle for getting
additional clarifying information about whether an employee may have work-
related restrictions” and was meant to provide employees with information
“about the COVID-19 safety protocols in place to alleviate concerns.” Pinder
also asserted that because Allos cared for her mother, who suffered from
dementia, she had an associational disability that required the district to
allow her to work from home on a full-time basis. The district responded that
leave options were available to Allos if she needed to care for her mother.
The meeting concluded with PUSD instructing Allos she was required to
return to work on May 3, 2021, or that she could seek a leave of absence to
care for her mother.
On April 26, 2021, Allos presented another note from Dr. Salada to the
district, which stated “Allos needs to work from home due to having a high
5
risk of contracting COVID-19 from underlying medical conditions.” The next
month, on May 14, 2021, Allos submitted a form “Request For Reasonable
Accommodation” to the district. Therein, Allos requested “to work from home
full time for the foreseeable future,” and stated, “I have adverse reactions to
vaccinations such that I cannot be vaccinated. Thus, I am unable to engage
in common procedures to stay healthy (i.e. vaccinations), and staying healthy
is a major life activity. Additionally, I have underlying medical conditions
that put me at high risk of contracting severe COVID-19- which is an
additional medical disability. Having reactions to vaccines, along with my
underlying medical conditions, is a condition which could lead to any number
of disabling diseases normally prevented by vaccination.”
A third interactive meeting occurred on June 24, 2021. Allos continued
to demand she be permitted to work from home on a full-time basis. The
district reiterated its position that PUSD did not have a remote work policy,
and its goal was to transition Allos back to the office full time. PUSD,
however, offered Allos a temporary accommodation of 50% in office, and 50%
remote work through July 30, 2021. The district’s representatives explained
that the workplace was safe, and that it would continue to provide Allos with
a private office and personal protective equipment. Pinder rejected the
proposal, and instead requested that Allos be permitted to continue her
current accommodation of working two hours in the office and the rest of her
eight-hour day remotely from home. The district responded that Allos was
not coming into the office, but instead was taking two hours of sick leave each
day, then working remotely for the balance. After additional back and forth,
Allos agreed to work one day in the office and four days remotely each week
through July 30, 2021.
6
The interactive meeting process was reconvened on August 3, 2021. At
the meeting, Allos expressed dissatisfaction with her in-office workday,
stating she felt like a “captive” and was “depressed” in a closed office. Pinder
again requested that Allos be permitted to work entirely remotely, and the
district representatives again reiterated PUSD did not permit remote work,
and their goal was to transition Allos back to the office full time. After
additional negotiations, Allos agreed to work four hours in the office three
days a week, one day fully in the office, and one day fully remotely until
November 30, 2021, at which time the parties would reconvene the
interactive process.
At a fifth interactive meeting on November 30, 2021, Pinder again
stated that Allos was seeking to work remotely full time, but that she was
“willing to continue the current schedule for a substantial amount of time,
and possibly on a permanent basis.” The district responded with a proposed
schedule that included four additional hours of in-office time, with the goal of
eventually transitioning Allos back to full time in-office work. After
additional negotiations, the parties agreed to continue the prior schedule of
20 hours remote work and 20 hours in office each week through July 1, 2022,
with Allos returning full time to the office thereafter.
On March 15, 2022, Allos filed the underlying complaint against PUSD,
asserting claims under FEHA for disability discrimination, failure to provide
reasonable accommodation, failure to engage in an interactive process,
associational discrimination, and retaliation. The complaint also included
claims for failure to maintain a safe and healthy workplace and retaliation in
violation of the Labor Code.
After Allos filed her lawsuit, a sixth, and final, interactive meeting took
place over July 20 and 21, 2022. Allos stated she was still unable to return to
7
the office full time because it caused “low energy, headaches, and mask
issues.” Pinder again requested his client be permitted to work entirely
remotely. After more negotiations, the parties agreed Allos would increase
her in office time to 25 hours a week, and she could either work in office the
remaining 15 hours or take vacation time. In addition, Allos would transition
to full time in-office work on January 3, 2023. If she failed to do so, the
district would place Allos on administrative leave. 4 On February 21, 2023,
Allos submitted a request for retirement on June 5, 2023.
PUSD filed its motion for summary judgment on December 7, 2023.
PUSD asserted it was entitled to a judgment in its favor because (1) Allos
could not show she had a disability to support her claims under FEHA,
(2) PUSD was immune from liability under section 855.4 because all of Allos’s
claims arose from its decisions concerning mitigating the spread of an
infectious disease, and (3) Allos could not establish her voluntary retirement
was an adverse employment action. PUSD requested summary adjudication
in the alternative.
PUSD also submitted a separate statement of undisputed facts that
was supported by evidence exchanged during discovery (including the
interactive meeting records, excerpts from Allos’s deposition, and notes from
Dr. Salada’s practice) and the declaration of Dr. Darius Schneider, an
internal medicine physician. Dr. Schneider stated he had reviewed Allos’s
4 In support of her opposition to the motion for summary judgment, Allos
submitted another letter from Dr. Salada’s office, dated July 6, 2022, advising
that Allos should be permitted to continue to work at home because “[s]he is
in the substantial risk age group if she were to contract SARS;” “[s]he lives at
home with an elderly parent that is also substantial risk for SARS
hospitalization and death;” and “[s]he would be more protected working in
the safety of her home rather than in office with personnel that are no longer
required to wear mask.”
8
medical records and concluded she did not have a severe allergy to the Tdap
vaccine. He also indicated that nothing in Allos’s medical history suggested
“she had an allergy to a COVID-19 vaccine, any ingredient in the vaccine, or
that she should not receive one for any reason.” According to Dr. Schneider,
Dr. Salada documented that Allos was not vaccinated for COVID-19 because
Allos refused the vaccine, not because of a contraindication that she had a
vaccine allergy. 5 Dr. Schneider also opined that Allos’s “mild reaction to the
Tdap vaccine does not constitute a functional impairment and does not rise to
the level of a disability.”
Allos opposed the motion for summary judgment. In her briefing, she
asserted she had “multiple disabilities which render her very susceptible to
hospitalization or death if she contracts COVID-19.” Allos explained she
“had allergies to several substances including a prior serious reaction/allergy
to a Tdap vaccine and an entirely reasonable fear that she had an allergy to
the COVID-19 vaccine. Additionally, she had become responsible for the care
of her elderly mother who has a dementia disability and lives at home with
5 Dr. Schneider further explained: “The Pfizer-BioNtech and Moderna
COVID-19 vaccines are FDA approved mRNA vaccines. This type of vaccine
uses the body’s own cell machinery to produce antigens for certain pathogens.
Those who are opposed to an mRNA vaccine may decide to receive the
Johnson & Johnson viral vector COVID-19 vaccine. This type of vaccine uses
a modified version of the virus as a vector to provide protection. The Tdap
vaccine is neither an mRNA nor viral vector vaccine, and does not contain
compounds usually found in ‘classic vaccines.’ [¶] The Centers for Disease
Control has indicated that even if an individual has had an allergy to any
vaccine in the past, there is no medical basis to avoid the COVID-19 vaccine.
No other vaccines are similar to the COVID-19 vaccine. The only precaution
recognized by the Centers for Disease Control is when a patient has a
documented allergy to polysorbitol or ethylene glycol, neither of which
Plaintiff has.”
9
[Allos.]” Allos’s opposition did not address PUSD’s assertion that her claims
were barred by section 855.4.
In its reply in support of the motion, PUSD again argued that
section 855.4 precluded Allos’s claims entirely and asserted that granting the
motion on this basis was appropriate because Allos had not addressed the
issue in her opposition brief. PUSD also argued Allos had failed to present
any evidence to support her assertions that she was disabled, or that her
retirement constituted an adverse employment action.
The day of the motion hearing, the trial court issued a tentative ruling
indicating its intent to grant the motion. At the hearing, the parties argued
their positions. Allos’s counsel asserted that because section 855.4 was in
conflict with FEHA and the Labor Code provisions under which Allos brought
her claims, section 855.4 was inapplicable. Allos’s counsel also argued that
all of Allos’s essential job functions could be performed at home. In addition,
he stated that the district’s decision to engage in an interactive process with
Allos was proof that PUSD regarded her as disabled.
In response to Allos’s counsel’s arguments, PUSD’s attorney stated that
section 855.4 was applicable, and Allos’s failure to address the argument in
her opposition brief supported granting the motion for summary judgment on
this basis. PUSD’s counsel further asserted the district conducted multiple
interactive meetings with Allos as she submitted new notes from her doctor
to determine if she had a disability that required an accommodation, and in
an effort to work with a long-time employee, not as an admission that she
was disabled. Finally, counsel argued there was no evidence to support
Allos’s assertion that she was forced to retire because she was denied
reasonable accommodation.
10
At the conclusion of the argument, the court confirmed its tentative
ruling and granted PUSD’s motion for summary judgment. The same day,
the court issued a minute order explaining its ruling. The court found Allos’s
claims were barred by section 855.4. The court also found that, even if
section 855.4 did not apply, Allos had failed to establish a triable issue of fact
because she (1) had “not demonstrated she suffer[ed] from a protected
disability that kept her from performing her job;” (2) could not perform all of
her essential job functions remotely; and (3) had not experienced an adverse
employment action. The court further found that Allos’s claims for failure to
provide a reasonable accommodation and failure to engage in an interactive
process failed because, even though it was not required, PUSD provided Allos
with six interactive meetings and “a variety of accommodations to lessen her
risk of contracting COVID-19.”
Thereafter, the trial court entered judgment against Allos and in favor
of PUSD. Allos timely appealed.
DISCUSSION
I
Legal Standards
“In determining whether a summary judgment motion was properly
granted, ‘we review the trial court’s decision de novo, applying the rule that
“[a] defendant is entitled to summary judgment if the record establishes as a
matter of law that none of the plaintiff’s asserted causes of action can
prevail.” ’ ” (MacKinnon v. Truck Ins. Exchange (2003) 31 Cal.4th 635, 641.)
When analyzing a motion for summary judgment, “we follow the traditional
three-step analysis. ‘We first identify the issues framed by the pleadings,
since it is these allegations to which the motion must respond. Secondly, we
determine whether the moving party has established facts which negate the
11
opponents’ claim and justify a judgment in the movant’s favor. Finally, if the
summary judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable, material
factual issue.’ ” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th
967, 975 (Shamsian).)
In undertaking this analysis, “ ‘[w]e construe the moving party’s
affidavits strictly, construe the opponent’s affidavits liberally, and resolve
doubts about the propriety of granting the motion in favor of the party
opposing it.’ [Citation.] We are obligated to uphold the trial court’s decision
if it is correct on any ground, regardless of the reasons the trial court gave.”
(Shamsian, supra, 107 Cal.App.4th at p. 975.) Further, “ ‘to demonstrate
error, an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record. ... [W]e may
disregard conclusory arguments that are not supported by pertinent legal
authority.’ ” (Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th
583, 597 (Champir); see also United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 146.)
II
Section 855.4 Immunity
As discussed, the trial court found that section 855.4 provided
immunity to PUSD for all of Allos’s claims, requiring summary judgment.
On appeal, Allos asserts this provision does not apply for various reasons,
including that the district did not present evidence that its “policy was not to
require employees to be vaccinated,” and that the provision does not apply
because it is “inconsistent with a mandatory duty” of PUSD under the FEHA
and Labor Code statutes on which Allos bases her claims. PUSD responds
that Allos waived her argument by not presenting it in her briefing in
12
opposition to their motion, and also refutes each of Allos’s substantive
arguments.
Section 855.4 is part of the Government Claims Act (§ 810 et seq.). The
Act’s “purpose is ‘assur[ing] ... judicial abstention in areas in which the
responsibility for basic policy decisions has been committed to coordinate
branches of government[,]’ because ‘[a]ny wider judicial review ... would place
the court in the unseemly position of determining the propriety of decisions
expressly entrusted to a coordinate branch of government.’ ” (Greenwood v.
City of Los Angeles (2023) 89 Cal.App.5th 851, 863 (Greenwood), quoting
Johnson v. State of California (1968) 69 Cal.2d 782, 790.)
The Act “ ‘establishes the basic rules that public entities are immune
from [noncontractual] liability except as provided by statute (§ 815, subd. (a)),
[and] that public employees are liable for their torts except as otherwise
provided by statute (§ 820, subd. (a)).’ ” (Greenwood, supra, 89 Cal.App.5th at
pp. 857–858.) Section 855.4 “provides one such exception to a public entity’s
liability under … any other statute[].” (Id. at p. 858.) It provides in full:
“(a) Neither a public entity nor a public employee is liable for an injury
resulting from the decision to perform or not to perform any act to promote
the public health of the community by preventing disease or controlling the
communication of disease within the community if the decision whether the
act was or was not to be performed was the result of the exercise of discretion
vested in the public entity or the public employee, whether or not such
discretion be abused. [¶] (b) Neither a public entity nor a public employee is
liable for an injury caused by an act or omission in carrying out with due care
a decision described in subdivision (a).” (§ 855.4.)
In response to Allos’s arguments that section 855.4 does not apply to
her claims, PUSD asserts that her claims are premised on its “decision not to
13
allow employees to work from home 100% of the time following the re-
opening of schools during the COVID-19 pandemic.” PUSD argues this policy
choice falls squarely within the immunity afforded by the statute. PUSD also
asserts that to the extent Allos’s claims are based on its decisions regarding
employee COVID-19 vaccine requirements, they are also barred by
section 855.4. 6
We agree with PUSD that to the extent Allos’s claims are based on its
decisions to allow employees to work from home and subsequently to require
their return to in-office work, the claims are barred by the immunity afforded
by section 855.4. (See City of Los Angeles v. Superior Court (2021) 62
Cal.App.5th 129, 144 [“By its plain language, section 855.4, subdivision (a)
immunizes any ‘decision’ relating to the control of the communication of
disease that is ‘the result of the discretion vested in the public entity.’ Such a
‘decision’ is immune, ‘whether or not such discretion [was] abused.’ Under
subdivision (b), immunity attaches to any act or omission performed while
carrying out such a decision, as long as the act or omission was performed
with due care.”].) Likewise, PUSD’s decisions concerning vaccine
requirements are also protected by this immunity. (Ibid.)
Critically, Allos’s briefing contains no reasoned argument to explain
how her claims fall outside the immunity afforded by section 855.4. Instead,
Allos makes a series of arguments that are not supported by facts in the
6 As noted, PUSD also argues Allos waived any argument concerning
section 855.4 in the trial court by failing to address the statute in her trial
court briefing. Allos, however, did address the statute at the hearing on
PUSD’s motion for summary judgment and has briefed the issue in this court.
Thus, the issue was not forfeited for purposes of appeal. (Cf. Woodward Park
Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 712
[“As a general rule, an appellate court will not review an issue that was not
raised by some proper method by a party in the trial court.”], italics added.)
14
record or any applicable legal authority. For this reason, we have no basis to
reverse the trial court’s finding that section 855.4 bars Allos’s claims. (See
Dilbert v. Newsom (2024) 101 Cal.App.5th 317, 323 [“the obligation to support
points with argument and citations to authority, requires more than simply
stating a bare assertion that the judgment ‘is erroneous and leaving it to the
appellate court to figure out why; it is not the appellate court’s role to
construct theories or arguments that would undermine the judgment and
defeat the presumption of correctness’ ”].)
Allos first argues that the District “provides no admissible (or any)
evidence that [its] policy was not to require employees to be vaccinated.”
However, as PUSD points out, Allos’s own discovery responses admitted that
PUSD did not impose a vaccine mandate. This admission conclusively
established this fact. (See Gelfo v. Lockheed Martin Corp. (2006) 140
Cal.App.4th 34, 48 (Gelfo) [“A judicial admission is a party’s unequivocal
concession of the truth of a matter, and removes the matter as an issue in the
case.”].)
Allos next argues the statute “does not immunize a public employer
from liability stemming from a decision which is inconsistent with a
mandatory duty of the employer.” Allos further asserts “the District had
many mandatory duties to [her] which it violated. These are the duties found
in [FEHA] and the Labor Code, the violations of which are amply described in
her civil complaint and in this brief.” This argument is conclusory and
provides no explanation of how PUSD’s decisions were inconsistent with the
duties PUSD allegedly violated. “ ‘ “On review of a summary judgment, the
appellant has the burden of showing error, even if he did not bear the burden
in the trial court. ... ‘As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and, therefore,
15
to point out the triable issues the appellant claims are present by citation to
the record and any supporting authority.’ ” ’ ” (Dinslage v. City and County of
San Francisco (2016) 5 Cal.App.5th 368, 379 (Dinslage).) Allos argument,
thus, does not warrant reversal.
Similarly, Allos argues without legal citation or further explanation
that “the lack of vaccinated employees in the workplace” was not “the only
reason for the harm to her;” that section 855.4 “is designed to address
common law claims such as negligence” and “has no role in interpreting the
FEHA;” and that because FEHA is “interpreted liberally to effectuate its
remedial purpose,” it outweighs “the public policy of the obscure Section
[ ] 855.4.” These legally unsupported arguments also do not support reversal
of the trial court’s judgment. (See Niko v. Foreman (2006) 144 Cal.App.4th
344, 368 [“ ‘This court is not inclined to act as counsel for … appellant and
furnish a legal argument as to how the trial court’s rulings in this regard
constituted an abuse of discretion’ [citation], or a mistake of law.”].)
Allos’s final two arguments concerning section 855.4 likewise are not
supported by factual citations to the record or any legal authority. Allos
baldly asserts PUSD’s decisions are not shielded by section 855.4 because
they were not carried out with due care, and that PUSD made no showing
that its decision to not mandate vaccines was to “ ‘promote public health of
the community by preventing disease or controlling the communication [sic]
of the disease within the community.’ ” These unsupported arguments are
not grounds for reversal. (See Dinslage, supra, 5 Cal.App.5th at p. 379 [It is
not this court’s role “ ‘to attempt to resurrect an appellant’s case or comb
through the record for evidentiary items to create a disputed issue of material
fact.’ ”].)
16
III
Even if we were to conclude section 855.4 does not provide immunity to
PUSD, Allos has also failed to meet her burden on appeal to show any triable
issues of material fact.
A
Disability Discrimination
With respect to her FEHA claims, Allos first argues the trial court
erred by concluding she did not have a disability. Without providing any
citation to the record, Allos asserts she is disabled because “[s]he has high
blood pressure which affects her ability to tolerate mental stress in her life,
what she can eat, driving and other normal living activities. She is obese,
which affects the major life activity of what foods and how often to eat, her
ability to ambulate and her ability to exercise. She also has allergies to
various substances. These are penicillin, amoxicillin, pertussis vaccine, Tdap
vaccine, and she reasonably believes other vaccines such as the COVID-19
vaccine.” Allos also argues that even if she does “not have an actual
disability within the meaning of FEHA, … the Defendant repeatedly
regarded her as having one,” which she asserts is sufficient for purposes of
her claims.
“To qualify as a member of the protected class under FEHA, [Allos]
must demonstrate h[er] impairment constitutes a disability according to the
statutory definition.” (Gelfo, supra, 140 Cal.App.4th at p. 47.) “As
disjunctively defined by FEHA, a person is ‘physically disabled’ if, among
other things, the individual: (1) Has a physiological condition that both
(a) affects a specific bodily system and (b) limits a major life activity; (2) Has
a ‘record or history of’ such a physiological condition; or (3) Is ‘regarded or
treated by’ the individual’s employer as having, or having had, any condition
17
that makes achievement of a major life activity difficult, or as having, or
having had, a physiological condition that is not presently disabling, but that
may become so.” (Id. at p. 46, quoting § 12926, subd. (k)(1)(A), (B), (3), (4),
(5).) “A physiological condition ‘limits’ a major life activity if it makes
difficult the achievement of the major life activity. (§ 12926,
subd. (k)(1)(B)(ii).) The term ‘major life activity’ is broadly construed, and
includes physical and social activities and working. (§ 12926,
subd. (k)(1)(B)(iii).)” (Gelfo, supra, 140 Cal.App.4th at p. 46.)
We agree with PUSD that Allos’s disability discrimination claims fail
because she has not presented any evidence that she has a qualifying
disability. As the district points out, “[w]hether an employee is disabled is
ultimately a question for the court” and “an employer is not bound to accept
an employee’s subjective belief that she is disabled.” (Hodges v. Cedars-Sinai
Medical Center (2023) 91 Cal.App.5th 894, 912‒913 (Hodges).) Here, the
evidence of Allos’s claimed disability—outside of her own self-serving
statements—consists of (1) health records indicating she had a reaction to a
Tdap vaccine in 2012 consisting of “redness swelling and pain of upper arm,
also some itching”; (2) health records showing she received a tetanus
vaccination in 2007 and two doses of pneumococcus prophylactic vaccine in
2010 with no documented side effects; and (3) PUSD’s expert testimony that
a suspected or self-diagnosed allergy to vaccines does not amount to a
disability.
None of these facts establish a qualifying disability within the meaning
of FEHA. The fact that Allos had a minor reaction to a vaccine almost ten
years before the COVID-19 vaccines were introduced does not show that her
decision not to receive a COVID-19 vaccine was a disability. Further, no
evidence in the record shows Allos was actually unable to get the vaccine.
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Rather, the undisputed evidence, including the records from Dr. Salada’s
practice, is that she chose not to receive the vaccine because she was fearful
of an allergic reaction. (See Hodges, supra, 91 Cal.App.5th at p. 909 [“Minor
reactions to a vaccine cannot amount to a disability. (See [Cal. Code Regs.,
tit. 2, § 11065, subd. (d)(9)(B)] [excluding from definition of ‘disability’ those
‘conditions hav[ing] little or no residual effects’].”].) Further, Allos provides
no explanation of how her alleged vaccine allergy interfered with her ability
to work, other than to state she did not want to risk getting COVID-19
because of her own health risks and the possibility she would expose her
elderly mother that suffered from dementia. This is not evidence of a
disability. “Clearly, [Allos] could get vaccinated. At best, she chose not to
due to risks of unspecified symptoms. Without evidence that these symptoms
would be sufficiently burdensome or lasting to amount to a disability, there is
no question of disability for a jury to consider.” (Hodges, at p. 909.)
Further, in her briefing before this court, Allos does not provide a
single citation to record evidence to support her contention that she is
disabled. Rejection of her claims on this basis alone is warranted. (See
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011 [“ ‘The
statement of any matter in the record shall be supported by appropriate
reference to the record.’ It is not the duty of a reviewing court to search the
record for evidence on a point raised by a party whose brief makes no
reference to the pages where the evidence can be found.”].)
Allos also argues that PUSD “repeatedly regarded her as having [a
disability], and [PUSD] has many records of her having one” because it
engaged in six interactive meetings with her, and thus she is disabled within
the meaning of FEHA. This argument, in addition to being unsupported by
legal authority, lacks merit. Throughout the process, PUSD’s officials made
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clear to Allos they did not view her as disabled. Further, under
section 12940, subdivision (n), PUSD was required to hold an interactive
process in response to Allos’s request for an accommodation. The district’s
decision to hold such meetings to evaluate her asserted disability and request
for accommodation was not an admission she was disabled. We agree with
the trial court that adoption of Allos’s position would be contrary to public
policy. As the trial court aptly stated, under Allos’s “theory, employers would
be incentivized to be less flexible with employees regarding their requests for
accommodations.” Such a result is contrary to the important policies behind
California’s disability discrimination laws. (See Brown v. Los Angeles Unified
School Dist. (2021) 60 Cal.App.5th 1092, 1109 [“The purpose of the
interactive process is to determine what accommodation is required.”].)
B
Failure to Accommodate & Engage in an Interactive Process
Allos next argues that because she “has disabilities within the meaning
of FEHA,” PUSD was obligated to accommodate her request to work entirely
from home. “The elements of a reasonable accommodation cause of action are
(1) the employee suffered a disability, (2) the employee could perform the
essential functions of the job with reasonable accommodation, and (3) the
employer failed to reasonably accommodate the employee’s disability.”
(Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) Judgment
on this claim was proper because, as discussed, Allos failed to identify a
triable material fact supporting her claim of a disability within the meaning
of FEHA. Likewise, Allos’s claim for failure to engage in an interactive
process fails for the same reason. (See Hodges, supra, 91 Cal.App.5th at
p. 913 [employer not “bound to engage in an interactive process with an
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employee who claimed disability but was neither disabled nor regarded by
the employer as being disabled”].) 7
C
Associational Discrimination
Allos argues her claim for associational discrimination was wrongly
dismissed, and that under Castro-Ramirez v. Dependable Highway Express,
Inc. (2016) 2 Cal.App.5th 1028, PUSD was required to provide her requested
accommodation of working from home full time. Under Castro-Ramirez, a
claim for associational disability discrimination may lie where the plaintiff
was subjected to an adverse employment action because of his or her
association with a disabled person. (Id. at p. 1037.) Castro-Ramirez
explicitly declined to decide whether the plaintiff had a viable claim for
failure to accommodate based on his son’s disability because he explicitly
abandoned any such claim prior to appeal. (Id. at p. 1038.) The Castro-
Ramirez court did express its view, however, that when “read in conjunction
with other relevant provisions” of FEHA, section 12940, subdivision (m) “may
reasonably be interpreted to require accommodation based on the employee’s
association with a physically disabled person.” (Id. at pp. 1038–1039.)
PUSD argues, as it did in the trial court, that Allos cannot establish a
claim for failure to accommodate based on associational discrimination
because it offered Allos leave to care for her mother, and because Allos
proffered no evidence that she suffered an adverse employment action as a
result of her request for full-time remote work. On the second point, we
agree. The undisputed evidence shows that although PUSD threatened to
7 We also note that the record shows the district engaged in an extensive
interactive process with Allos over the course of more than two years and
offered her significant accommodations over that time.
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place Allos on administrative leave if she did not return to the office on a full
time basis by January 1, 2023, it never placed her on leave.
Instead, Allos voluntarily retired without any adverse consequence.
Allos offered no evidence to rebut this fact in the trial court. She stated only
in a conclusory fashion that she was “forced to resign from District
employment because the District required that she return 100% of the time to
a workplace that was unsafe for her.” On appeal, Allos provides no argument
concerning the existence of an adverse employment action nor does she offer
any evidence to support this fact. Because there is no evidence that Allos was
subjected to an adverse employment action, her claim for associational
disability discrimination was correctly dismissed. 8
D
Retaliation
Allos next argues that her retaliation claim under FEHA was not
subject to summary judgment. Specifically, she argues she was retaliated
against for requesting an accommodation to work from home entirely and
that she was eventually constructively terminated. As discussed, the
evidence does not establish that Allos was disabled—and thus, was not
entitled to accommodations—and that she was not constructively terminated.
In addition, contrary to Allos’s conclusory assertion, PUSD was not required
to provide Allos with the specific accommodation she requested. (See Hanson
v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 [“The employer is not
obligated to choose the best accommodation or the accommodation the
employee seeks. … As the Supreme Court has held in analogous
8 We also note that Allos did not plead a claim for associational failure to
accommodate under section 12940, subdivision (m) in her complaint. Rather,
she asserted a claim for associational discrimination under section 12926,
subdivision (o).
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circumstances, an employee cannot make his employer provide a specific
accommodation if another reasonable accommodation is instead provided.”].)
Accordingly, the trial court properly rejected Allos’s claim that PUSD’s
decision not to allow full-time remote work constituted retaliation in violation
of FEHA.
E
Labor Code Violations
Allos’s assertion the trial court erred by granting PUSD’s motion for
summary judgment of her Labor Code claims is also without merit. Her sixth
cause of action asserts a claim for violation of Labor Code sections 6400 and
6401. As Allos notes in her brief, Labor Code section 6400, subdivision (a)
states, “Every employer shall furnish employment and a place of employment
that is safe and healthful for the employees therein.” Similarly, Labor code
section 6401 states, “Every employer shall furnish and use safety devices and
safeguards, and shall adopt and use practices, means, methods, operations,
and processes which are reasonably adequate to render such employment and
place of employment safe and healthful. Every employer shall do every other
thing reasonably necessary to protect the life, safety, and health of
employees.”
Allos asserts, with no factual citation, that she “is at great risk of
hospitalization or death if she contracts” COVID-19 and that because PUSD
required her to work in the office where she had contact with other
employees, she has a valid cause of action under these Labor Code provisions.
Allos, however, provides no argument at all as to how the trial court erred by
granting PUSD’s motion with respect to this claim. Accordingly, we have no
basis to reverse the court’s ruling. (See Dinslage, supra, 5 Cal.App.5th at
p. 379.)
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Allos’s seventh cause of action alleges PUSD violated Labor Code
section 6310, which generally prohibits an employer from discharging or
discriminating against an employee who “has made a bona fide oral or
written complaint to the [Division of Occupational Safety and Health], other
governmental agencies having statutory responsibility for or assisting the
division with reference to employee safety or health, their employer, or their
representative, of unsafe working conditions, or work practices, in their
employment or place of employment, or has participated in an employer-
employee occupational health and safety committee.” (Lab. Code, § 6310,
subds. (a), (b).) As with her assertions that PUSD violated Labor Code
sections 6400 and 6401, Allos provides no argument addressing how the trial
court’s decision to grant PUSD’s motion with respect to this claim was error.
Instead, she asserts only that PUSD’s “justifications for how it treated [her]
after her complaints of an unsafe workplace are either unlawful or
unconvincing.” As with many of her other arguments, this conclusory
assertion provides no basis to overturn the trial court’s decision. (See
Champir, supra, 66 Cal.App.5th at p. 597 [“ ‘we may disregard conclusory
arguments that are not supported by pertinent legal authority’ ”].)
The same problem exists with respect to Allos’s claim under Labor
Code section 1102.5. “[S]ection 1102.5, is ‘ “California’s general
whistleblower statute.” ’ ” (Winston v. County of Los Angeles (2024) 107
Cal.App.5th 402, 407.) “When first enacted in 1984, the whistleblower
statute provided protection only for employees who reported suspected
violations of law to outside government or law enforcement agencies.
[Citation.] In 2014, the California Legislature amended [the law] to protect
employees from retaliation against disclosure to ‘a person with authority over
the employee or another employee who has the authority to investigate,
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discover, or correct the violation’ as well as retaliation ‘for providing
information to, or testifying before, any public body conducting an
investigation, hearing or inquiry.’ 2013 Cal. Stats., ch. 577, § 5.5 (S.B. 666);
ch. 732, § 6.5 (Assemb. B. 263); ch. 781, § 4.1 (S.B. 496).” (Killgore v. SpecPro
Professional Services, LLC (9th Cir. 2022) 51 F.4th 973, 985.)
Allos asserts without any citation to the record that “[o]bviously, [she]
has presented evidence demonstrating that her numerous complaints of
workplace safety concerns, disability discrimination, of failure to
accommodate her disability and failure to engage in a good faith interactive
accommodation process were at least a contributing factor in the prohibited
actions against her.” Again, this conclusory assertion is insufficient to
support reversal of the trial court’s ruling. Allos cites no evidence
demonstrating the district’s justifications for requiring her to return to work
were untrue or a pretext to retaliate against her and, as discussed, Allos
failed to show she was forced to resign, or otherwise faced any adverse
employment action. To the contrary, the evidence presented by PUSD
established she was never demoted, disciplined, or terminated. Accordingly,
Allos has not shown the trial court’s ruling granting summary judgment was
error.
F
Evidentiary Rulings
In the final section of her brief, Allos makes a general request for this
court to rule on evidentiary objections she made in the trial court. As PUSD
points out, however, the trial court explicitly overruled Allos’s evidentiary
objections. On appeal, Allos makes no reasoned argument concerning her
specific evidentiary objections and provides no basis for us to reverse the trial
court’s ruling.
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DISPOSITION
The judgment is affirmed. Respondent is awarded costs of appeal.
McCONNELL, P. J.
WE CONCUR:
DO, J.
KELETY, J.
26
Filed 7/7/25
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KHELOUD ALLOS, D084062
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2022-
00009917-CU-OE-CTL)
POWAY UNIFIED SCHOOL DISTRICT,
ORDER CERTIFYING
Defendant and Respondent. OPINION FOR PUBLICATION
THE COURT:
The opinion in this case filed June 24, 2025 was not certified for
publication. It appearing the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the request pursuant to
rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
McCONNELL, P. J.
Copies to: All parties
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