The opinion
Filed 4/29/26 Rinard v. Alhambra Unified School Dist. CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CANDY RINARD et al., B339287
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 22STCV21716)
v.
ALHAMBRA UNIFIED SCHOOL
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Wendy Chang, Judge. Affirmed.
Watkins & Letofsky, Daniel R. Watkins and Armando M.
Galvan for Plaintiffs and Appellants.
Kessel & Megrabyan, Elizabeth M. Kessel, Armineh
Megrabyan and Martha Cohen for Defendant and Respondent.
____________________
Plaintiffs Candy Rinard, Erika Calderon, Amanda
Kirkpatrick, Yesenia Lira, Julian Lopez, Danielle Massaro, Lisa
Massaro, Elaine Ramos, Alexis Rojas, Gabriela Tesoriero,
Melanie Valenzuela, and Jessica Vargas appeal the trial court’s
summary judgment in their California Fair Employment and
Housing Act (FEHA; Gov. Code,1 § 12900 et seq.) action against
their former employer, defendant Alhambra Unified School
District (AUSD). Because the court correctly concluded there
were no triable issues of material fact, we affirm.
FACTUAL BACKGROUND
Plaintiffs were employees of AUSD, a school district that
operated 13 K-8 elementary schools, three high schools, and
special education programs. AUSD served around 15,000
students and had around 2,000 employees. Rinard was a health
assistant. Calderon supervised students before school, after
school, and during breaks. Kirkpatrick was an office manager.
Lira was a guidance office secretary. Lopez was a warehouse
foreman. Danielle and Lisa Massaro were instructional aides who
worked with special education students. Ramos was an
attendance office manager. Rojas was a behavioral intervention
assistant who worked with students with disabilities. Tesoriero
was a Spanish teacher. Valenzuela was a food service cook and
manager. Vargas was an English teacher.
In response to the COVID-19 pandemic, AUSD offered
remote instruction in March 2020 through the end of that school
year and for the entire 2020–2021 school year. For the 2021–2022
school year, AUSD returned to in-person learning.
1 Undesignated statutory references are to the Government
Code.
2
As fall 2021 neared, the highly transmissible Delta variant
of the COVID-19 virus led to a surge of infections in Los Angeles
County. At that time, AUSD was already requiring students and
employees to regularly test for COVID-19, wear a mask, and
maintain social distancing (i.e., nonpharmaceutical protocols).
AUSD also had a quarantine policy, under which asymptomatic
individuals who had close contact with an infected person had to
quarantine for seven days and symptomatic individuals had to
quarantine for 10 days. After considering the advice of public
health agencies and determining these policies alone were
insufficient to prevent the spread of COVID-19, AUSD also
approved a policy requiring all of its employees to be vaccinated
and submit proof of vaccination by October 31, 2021. The policy
subjected any noncompliant employee to discipline unless they
obtained an exemption.
On September 15, 2021, Assistant Superintendent John
Scanlan notified employees of this vaccination policy. After
Plaintiffs sought a religious accommodation, AUSD sent
Plaintiffs an individual questionnaire to gather information
about their requests and determine whether accommodations
were possible. In Plaintiffs’ responses, they informed AUSD the
vaccines were developed using material originating from an
aborted fetus, and receiving a vaccine would make them
participants in voluntary abortions, which is offensive to their
religious teachings. They also believed their bodies are religious
temples and receiving the vaccine would defile their bodies.
Plaintiffs requested as an accommodation they be allowed to
continue the prior practice of weekly testing and masking in lieu
of being vaccinated. Plaintiffs’ requests did not mention AUSD’s
quarantine protocols.
3
AUSD did not question the sincerity of Plaintiffs’ religious
beliefs. AUSD, however, denied the exemption requests on the
basis an exemption would compromise workplace safety and
impinge on the rights of other employees and students. AUSD
also considered alternative accommodations such as changes in
work assignments or hours but concluded these options were not
feasible or adequate to promote workplace safety. In what AUSD
described as a final attempt to accommodate Plaintiffs, it placed
Plaintiffs on unpaid leave effective November 1, 2021.
In mid-November 2021, AUSD advised Plaintiffs their
unpaid leave would expire on December 1, 2021, after which they
would be subject to termination unless they provided proof of
vaccination. After Plaintiffs failed to submit proof of vaccination,
AUSD terminated each of Plaintiffs’ employments except for
Vargas and Tesoriero, who resigned, and Lisa Massaro, who
retired.
PROCEDURAL HISTORY
In July 2022, Plaintiffs filed this action against AUSD
alleging five FEHA violations. Below, Plaintiffs conceded to the
dismissal of the interactive process and harassment causes of
action. On appeal, Plaintiffs do not raise any argument regarding
the dismissal of the discrimination and retaliation causes of
action. The only cause of action which Plaintiffs argue for
reversal on appeal is the failure to accommodate religious belief
or observance.
The trial court summarily adjudicated this cause of action
when it granted AUSD’s motion for summary judgment. In its
ruling, the court first excluded the declarations of Plaintiffs’
experts Janci C. Lindsay, Ph.D., and Jeffrey I. Barke, M.D., and
portions of Plaintiffs’ declarations. The court then concluded
4
section 855.4 immunized AUSD from liability under FEHA. In
the alternative, the court also found there was no triable issue of
material fact as to any remaining FEHA cause of action, so that
summary judgment was appropriate. The failure to accommodate
religious belief cause of action failed because AUSD showed it
initiated good-faith efforts to accommodate Plaintiffs and
demonstrated no reasonable accommodation was possible without
imposing undue hardship.
Plaintiffs timely appealed. (See Cal. Rules of Court,
rule 8.104(d)(2).)
DISCUSSION
As noted, the trial court concluded section 855.4 barred
Plaintiffs’ entire action. The court, however, also summarily
adjudicated the cause of action for failure to accommodate on the
basis there were no triable issues of fact. Because the latter
provides us with a sufficient basis to affirm, we need not and do
not address the applicability of section 855.4. (See Gray v. La
Salle Bank, N.A. (2023) 95 Cal.App.5th 932, 976, fn. 31 [appellate
courts may affirm summary judgment if correct on any legal
theory as long as parties had opportunity to address the issue
below]; Benach v. County of Los Angeles (2007) 149 Cal.App.4th
836, 845, fn. 5 [“appellate courts will not address issues whose
resolution is unnecessary to disposition of the appeal”].)
I. Standard of Review
We review de novo the trial court’s order granting a
defendant’s motion for summary judgment. (Guz v. Bechtel Nat.,
Inc. (2000) 24 Cal.4th 317, 334.) We view the evidence in the light
most favorable to the nonmoving party and decide whether there
is a triable issue of any material fact. (Serri v. Santa Clara
5
University (2014) 226 Cal.App.4th 830, 859; see also Code Civ.
Proc., § 437c, subd. (c).)
As for the trial court’s rulings on evidentiary objections,
appellate courts are split whether to review those decisions de
novo or for an abuse of discretion. (Alexander v. Scripps Memorial
Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 (Alexander); see
Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to
resolve the split in authority].) We need not resolve this issue
because our decision is the same under either standard.
II. The Trial Court Did Not Err in Excluding the
Declarations of Plaintiffs’ Experts
Under Evidence Code section 720, “A person is qualified to
testify as an expert if he has special knowledge, skill, experience,
training, or education sufficient to qualify him as an expert on
the subject to which his testimony relates.” (Id., subd. (a).) “[T]he
field of expertise must be carefully distinguished and limited”
(People v. Brown (2001) 96 Cal.App.4th Supp. 1, 37), and
“[q]ualifications on related subject matter are insufficient”
(People v. Hogan (1982) 31 Cal.3d 815, 852, disapproved on other
grounds by People v. Cooper (1991) 53 Cal.3d 771, 836).
Even if a witness is qualified as an expert, “under Evidence
Code sections 801, subdivision (b), and 802, the trial court acts as
a gatekeeper to exclude expert opinion testimony that is (1) based
on matter of a type on which an expert may not reasonably rely,
(2) based on reasons unsupported by the material on which the
expert relies, or (3) speculative.” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 771–
772.) “This means that a court may inquire into, not only the type
of material on which an expert relies, but also whether that
material actually supports the expert’s reasoning. ‘A court may
6
conclude that there is simply too great an analytical gap between
the data and the opinion proffered.’ ” (Id. at p. 771.)
“ ‘[T]he gatekeeper’s focus “must be solely on principles and
methodology, not on the conclusions that they generate.” ’
[Citation.] ‘The value of opinion evidence rests not in the
conclusion reached but in the factors considered and the
reasoning employed.’ [Citation.] An ‘expert opinion may not be
based on assumptions of fact that are without evidentiary
support or based on factors that are speculative or conjectural, for
then the opinion has no evidentiary value and does not assist the
trier of fact. [Citation.] Moreover, an expert’s opinion rendered
without a reasoned explanation of why the underlying facts lead
to the ultimate conclusion has no evidentiary value because an
expert opinion is worth no more than the reasons and facts on
which it is based.’ ” (Alexander, supra, 23 Cal.App.5th at p. 225.)
The trial court appropriately concluded Lindsay did not
establish expertise in the subject matter in question, specifically
infectious disease control, immunology, public health, viral
transmission, or COVID-19 transmission. Lindsay holds
doctorates in biochemistry and molecular biology and held herself
out as having 30 years of scientific experience “primarily in the
area of Toxicology.” Lindsay stated she has expertise in
immunology through investigating exposures to chemicals, drugs,
et cetera, and she was “well acquainted with” the effects caused
by various viruses and gene therapies relating to COVID-19. But
expertise on the possible effects of COVID-19 or its vaccines was
not at issue in this request for accommodation case. Rather, the
issue centered on whether vaccinations or nonpharmaceutical
protocols were effective steps to prevent disease or combat
transmission. Thus, the court did not err in concluding Lindsay
7
failed to establish she was medically and scientifically qualified
to testify regarding the relevant topics of epidemiology, infectious
disease control, public health, viral transmission, or COVID-19
transmission as it related to the accommodations sought.
The trial court also appropriately concluded Barke, a family
medicine doctor who has treated over 1,000 patients with
COVID-19, was not qualified to testify regarding vaccine efficacy
because he was not an expert on epidemiology, infectious disease
control, immunology, public health, viral transmission, or
COVID-19 transmission.
Even if Lindsay and Barke were qualified, the trial court
properly acted as a gatekeeper to exclude their unsupported
opinions. Both experts included virtually the same paragraphs in
their declarations, opining, among other things, that
unvaccinated employees did not present a substantial risk of
contracting or transmitting COVID-19, vaccinated employees
presented the same contraction and transmission risk, receiving
the vaccine presented greater health risks than remaining
unvaccinated, and allowing unvaccinated employees to continue
working at AUSD would not be undue hardship. To support these
opinions, they cited a study of a private wedding in Barnstable,
Massachusetts, and minute-long YouTube excerpts of interviews
with CDC Director Rochelle Walensky and Dr. Anthony Fauci.
But neither the research study nor YouTube excerpts were
presented to the trial court, and the descriptions of them did not
support either expert’s sweeping opinions. At best, they
supported the assertion that the vaccines did not fully prevent
the transmission of COVID-19. Nothing in those materials
supported the broader assertion that remaining unvaccinated did
not pose a substantial risk of contracting or transmitting COVID-
8
19. The materials certainly did not support the assertions that
vaccines presented the same risk of contracting COVID-19, posed
a greater risk to the recipient’s general health, and provided no
greater protection than that provided by masking and testing
alone.
None of Plaintiffs’ arguments convinces us otherwise.
Plaintiffs contend the trial court applied an overly stringent
standard for admitting expert testimony because courts are
required to liberally construe opposition papers at the summary
judgment stage. It is true, as Plaintiffs point out, that Sargon,
supra, 55 Cal.4th 747 concerned the admissibility of expert
testimony at trial, and courts have held the rule requiring courts
to liberally construe the evidence submitted in opposition to
summary judgment applies to rulings on the admissibility of
expert testimony. (See, e.g., Michaels v. Greenberg Traurig, LLP
(2021) 62 Cal.App.5th 512, 524.)
Nonetheless, limitations remain. First, “the summary
judgment statute still requires the evidence provided in
declarations to be admissible at trial.” (Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 541.) Second, experts do
not have carte blanche to express any opinion within their area of
expertise; courts may still exclude expert opinions submitted in
opposition to summary judgment that are based on assumptions
without evidentiary support. (Sanchez v. Kern Emergency
Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155.)
Even when the Lindsay and Barke declarations are liberally
construed, these witnesses did not support their qualifications
and opinions with adequate foundation.
Plaintiffs also criticize the trial court for several remarks it
made at the summary judgment hearing. Specifically, Plaintiffs
9
argue the court’s references to the federal Daubert2 standard and
its own experience with COVID-19 demonstrated the court’s legal
analysis was wrong. The court’s comments at oral argument,
however, do not warrant reversal because the final ruling issued
after oral argument is devoid of any such references.(Jie v. Liang
Tai Knitwear Co. (2001) 89 Cal.App.4th 654, 667, fn. 9 [“[A] trial
judge’s oral remarks or opinions, not embodied in the written
findings or judgment, may not be used to impeach the findings or
judgment.”].) And even if the court had relied upon such matters,
appellate courts will not disturb a ruling, itself correct in law,
merely because the trial court gave a wrong reason. (People v.
Zapien (1993) 4 Cal.4th 929, 976.)
In short, Plaintiffs did not demonstrate the trial court
erroneously excluded the Lindsay and Barke declarations.
III. There Are No Triable Issues of Fact as to the
Failure to Accommodate Cause of Action
FEHA prohibits an employer from “discriminat[ing] against
a person . . . because of a conflict between the person’s religious
belief or observance and any employment requirement, unless the
employer . . . demonstrates that it has explored any available
reasonable alternative means of accommodating the religious
belief or observance . . . but is unable to reasonably accommodate
the religious belief or observance without undue hardship.”
(§ 12940, subd. (l)(1).)
To make out a prima facie case for relief, the plaintiffs
must first show they “sincerely held a religious belief; the
employer was aware of that belief; and the belief conflicted with
2 Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
509 U.S. 579.
10
an employment requirement.” (California Fair Employment &
Housing Com. v. Gemini Aluminum Corp. (2004) 122 Cal.App.4th
1004, 1011 (Gemini); see also Soldinger v. Northwest Airlines,
Inc. (1996) 51 Cal.App.4th 345, 370 (Soldinger).)
AUSD did not dispute Plaintiffs made out a prima facie
case for relief. The burden thus shifted to AUSD to “establish
that ‘it initiated good faith efforts to accommodate or no
accommodation was possible without producing undue
hardship.’ ” (Gemini, supra, 122 Cal.App.4th at p. 1011, italics
added.) Because AUSD demonstrated no reasonable
accommodation was possible without undue hardship, we need
not and do not address whether AUSD initiated good-faith efforts
to accommodate.
A. AUSD Demonstrated No Reasonable
Accommodation Was Possible
“ ‘[T]he extent of undue hardship on the employer’s
business is at issue only where the employer claims that it is
unable to offer any reasonable accommodation without such
hardship.’ ” (Soldinger, supra, 51 Cal.App.4th at p. 371, italics
added.) When an employer fails to “explore any available
alternatives, it violate[s] its statutory obligation to accommodate
unless [it] establishe[s] that any reasonable accommodation
would have caused it an undue hardship.” (Id. at p. 373, italics
added.)
“ ‘Undue hardship’ ” is defined as “an action requiring
significant difficulty or expense, when considered in light of the
following factors: [¶] (1) The nature and cost of the
accommodation needed. [¶] (2) The overall financial resources of
the facilities involved in the provision of the reasonable
accommodations, the number of persons employed at the facility,
11
and the effect on expenses and resources or the impact otherwise
of these accommodations upon the operation of the facility. [¶]
(3) The overall financial resources of the covered entity, the
overall size of the business of a covered entity with respect to the
number of employees, and the number, type, and location of its
facilities. [¶] (4) The type of operations, including the
composition, structure, and functions of the workforce of the
entity. [¶] (5) The geographic separateness or administrative or
fiscal relationship of the facility or facilities.” (§ 12926, subd. (u);
see also Petersen v. Snohomish Regional Fire and Rescue (9th Cir.
2025) 150 F.4th 1211, 1217 (Petersen) [analyzing undue hardship
under federal law]; Soldinger, supra, 51 Cal.App.4th at p. 370,
fn. 11 [“California courts look to . . . federal cases . . . in
evaluating failure to accommodate allegations”].) This includes
analyzing the effect of the accommodation on coworkers, to the
extent that effect bears upon the conduct of the employer’s
business. (Groff v. DeJoy (2023) 600 U.S. 447, 472.)
We evaluate AUSD’s decision at the time Plaintiffs
requested an exemption from the vaccine mandate—that is, in
the context of the COVID-19 pandemic during fall 2021.
(See Petersen, supra, 150 F.4th at p. 1222 [“Nor can we judge [an
employer] with the clarity of hindsight or the benefit of post-
pandemic debates over what measured responses frontline
employers should have taken.”].)
1. Plaintiffs’ Masking, Testing, and
Quarantining Accommodation Posed
Undue Hardship
The trial court correctly determined AUSD demonstrated it
would have been undue hardship for it to accommodate Plaintiffs
in fall 2021 by allowing them to continue working in their
12
positions, onsite, unvaccinated, while abiding by masking,
testing, and quarantining protocols. Specifically, the court
determined: “testing contained a lag time that would not allow
the [AUSD] to be able to effectively exclude the infected person
prior to infecting others, the ‘constant, unpredictable’ disruption,
loss of productivity, reduction in resources and services caused by
infections or monitoring for infections at a time when adequate
staffing was critical to assist with the need to clean the facilities,
enforce social distancing and mask wearing among the students
[many of whom could not be vaccinated], and that such would
also require additional resources to repeat test and monitor
quarantining employees who were out ill.” (Brackets in original.)
Plaintiffs argue we must reverse summary judgment
because the trial court applied the incorrect legal standard for
undue hardship. According to Plaintiffs, the citation to Doe v. San
Diego Unified School District (9th Cir. 2021) 19 F.4th 1173
indicates the court applied a less stringent “ ‘more than de
minimis’ ” standard.
Although the trial court cited Doe, it did so for the
proposition an employee’s request for an exemption from the
COVID-19 vaccination mandate can be denied on undue hardship
grounds because the accommodation would increase the risk of
the spread of COVID-19 to other employees or to the public.
Nowhere in the court’s ruling is any reference to the “ ‘more than
de minimis’ ” standard. To the contrary, the court explicitly found
AUSD demonstrated the accommodation would cause a
“significant hardship,” which is consistent with FEHA’s
“significant difficulty or expense” standard. (See § 12926,
subd. (u).)
13
We agree AUSD showed, through the declaration of
Scanlan, that it would suffer undue hardship in accommodating
Plaintiffs in light of the significant health or safety and
operational burdens it would impose in the context of the
extraordinary challenge presented by the COVID-19 pandemic.
(See Petersen, supra, 150 F.4th at p. 1218 [discussing those
categories for undue hardship in a Title VII case].)
Health and Safety Burdens. (See § 12926, subd. (u)(2),
(4).) The health and safety of AUSD’s students, teachers, and
staff (including Plaintiffs) would be jeopardized by allowing
Plaintiffs in fall 2021 to work onsite, unvaccinated, with a
masking, testing, and quarantining protocol. COVID-19 posed
serious health risks, and information from public health agencies
led AUSD to believe the COVID-19 vaccines were safe and highly
effective at curbing its spread and preventing serious illness,
hospitalization, and death. The majority of new infections were
occurring in unvaccinated people, and masking and social
distancing alone were not sufficient to stop transmission, which
was surging in fall 2021 due to the Delta variant. Further,
because children under 12 were not eligible to be vaccinated in
fall 2021, the fact that a substantial number of AUSD’s student
population were not protected created an enhanced need for
eligible adults to be vaccinated. Thus, the record shows allowing
Plaintiffs to work without being fully vaccinated presented a
significant risk of substantial harm to Plaintiffs themselves and
to others in the workplace, including thousands of children, and
thus impaired AUSD’s ability to provide a safe workplace for
employees and a safe learning environment for students.
Operational Burdens. (See § 12926, subd. (u)(2), (4).)
Allowing Plaintiffs to work onsite, unvaccinated, with a masking,
14
testing, and quarantining protocol would also impose substantial
operational burdens on AUSD. At the time AUSD implemented
the vaccine mandate, it required asymptomatic employees and
students who had close contact with an infected person to
quarantine for seven days, even if they tested negative. AUSD
also required symptomatic individuals to quarantine for 10 days.
The presence of unvaccinated individuals, with their associated
higher risk of COVID-19 infection, made work disruptions more
likely. Thus, the record shows accommodating Plaintiffs would
have caused operational burdens by exposing AUSD to significant
employee and student absenteeism as a result of COVID-19
illness and quarantine.
In light of these substantial burdens, the trial court
correctly concluded allowing Plaintiffs to remain onsite in their
positions, unvaccinated, with a masking, testing, and
quarantining accommodation imposed undue hardship upon
AUSD.
Plaintiffs suggest AUSD misframed the undue hardship
standard by setting an ideal maximum goal, like achieving the
safest possible workplace, and claiming an accommodation posed
undue hardship by preventing them from reaching that
unrealistic goal. We need not address this contention as the
record shows Plaintiffs’ suggested accommodation imposed undue
hardship on AUSD, irrespective of its desired safety goals.
2. Plaintiffs Failed to Show a Triable Issue
of Fact Regarding Undue Hardship
We also conclude the trial court correctly found Plaintiffs
failed to show a triable issue of material fact exists as to the
existence of undue hardship on AUSD.
15
Plaintiffs presented no admissible evidence to rebut
AUSD’s showing. On appeal, Plaintiffs point to their expert
declarations. But as discussed in part II, ante, the declarations
were inadmissible, making them incapable of raising a triable
issue. Plaintiffs also cite portions of their declarations that were
excluded by the trial court. Because Plaintiffs do not challenge
these rulings on appeal, “we exclude this evidence from our
review of the summary judgment motion.” (Wall Street Network,
Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1181.)
Plaintiffs also claim the very fact AUSD relied on masking,
testing, and quarantining protocols for 18 months before the
vaccine mandate creates a triable issue of fact that continuing
these protocols would not have caused any disruption. But we
evaluate AUSD’s decision at the time it refused to accommodate
Plaintiffs and do not consider with the clarity of hindsight what it
previously tried to do. (See Petersen, supra, 150 F.4th at p. 1222.)
The record shows masking, testing, and quarantining were
inadequate in fall 2021 to protect the health and safety of AUSD
students and employees. It was also inadequate to prevent
operational disruptions. Masking would have provided an
additional layer of protection, but it was not sufficient to mitigate
the risk of contracting COVID-19. Although AUSD could have
tested employees daily or weekly, there was a 36- to 48-hour lag
time that prevented AUSD from effectively excluding the infected
person before they affected others. And if an employee displayed
COVID-19 symptoms or became exposed to an infected person,
they had to quarantine 10 to seven days, which in turn required
AUSD to divert resources needed elsewhere to compensate for
that employee’s absence. Thus, reliance on masking, testing, and
quarantining would not have prevented the spread of infections
16
or diminished the potential for unpredictable absences of key
staff; that nonpharmaceutical interventions were used in the past
does not show a triable issue of material fact that accommodating
Plaintiffs in fall 2021 by allowing them to work onsite,
unvaccinated, with those interventions was not undue hardship.
Plaintiffs also argue AUSD’s claim of future risk of illness
was hypothetical and insufficient to demonstrate undue
hardship. On this point, the Ninth Circuit’s opinion in Petersen,
supra, 150 F.4th 1211 offers us guidance. There, the court held
the defendant could not have accommodated their firefighters’
religious objections to the COVID-19 vaccine mandate without
undue hardship. (Id. at p. 1213.) In holding so, the court
considered risks to the health and safety of both the other
firefighters and the public and the impact on the defendant’s
operations given the potential for widespread absences. (Id. at
pp. 1218–1222.) Addressing the firefighters’ argument the mere
risk of hypothetical harms cannot constitute undue hardship, the
court rejected the notion undue hardship equates to “ ‘realized
hardships’ ”; undue hardship “may include an evaluation of the
risk of hardship, not just an accounting of damages actually
suffered” provided the risk is realistic and not merely
hypothetical. (Id. at pp. 1221–1222.)
Here, Scanlan’s declaration supplies this evidence. As
detailed in part III.A.1., ante, there is evidence accommodating
Plaintiffs would have risked causing AUSD’s students and
employees to contract or be exposed to COVID-19, ultimately
jeopardizing their health or interfering with AUSD’s operations
due to unpredictable absenteeism.
Plaintiffs’ attempts to distinguish Petersen are not
persuasive. Plaintiffs first point out Petersen was a Title VII
17
federal case rather than a California FEHA case. As already
noted, “California courts look to federal cases . . . in evaluating
failure to accommodate allegations.” (Soldinger, supra,
51 Cal.App.4th at p. 370, fn. 11.) Plaintiffs’ contention is also
undercut by the fact Plaintiffs’ undue hardship analysis centers
around Groff, supra, 600 U.S. 447, a federal Title VII case.
Plaintiffs also argue this case is different from Petersen
because AUSD’s evidence of future harm comes from Scanlan, a
lay witness who Plaintiffs claim was incompetent to offer
testimony supporting AUSD’s undue hardship defense. For
several reasons, the argument is not well taken.
First, AUSD overstates what Scanlan said in his
declaration. It is not true, as Plaintiffs contend, that Scanlan
offered personal beliefs not backed with any data and essentially
played the role of medical expert despite not being one. He
testified he was a human resources administrator familiar with
personnel decisions relating to all AUSD employees. In that
capacity, he was familiar with the considerations that led to
AUSD’s vaccine mandate, such as information from public health
agencies that the COVID-19 vaccines were safe and effective at
curbing the spread of COVID-19, as well as the burdens that
would be caused by accommodating Plaintiffs’ religious beliefs.
He detailed those considerations in his declaration, and his
testimony is competent evidence to support AUSD’s undue
hardship defense. (See Rodrique v. Hearst Communications, Inc.
(1st Cir. 2025) 126 F.4th 85, 88, 91–94 [relying on declaration
from human resources personnel to hold accommodating the
plaintiffs’ religious objections to COVID-19 vaccine mandate
would constitute undue hardship under Title VII].)
18
Second, Plaintiffs premise their attack on Scanlan’s
declaration on the notion an employer must back up claims of
potential harm to others with medical evidence, but Plaintiffs’
only support for this position comes from the disability context.
In disability cases, employers may refuse to hire or discharge
employees if their condition renders them incapable of
performing their duties in a manner that would not endanger
their health or safety or the health or safety of others. (§ 12940,
subd. (a)(1), (2).) To establish this “health or safety risk” defense,
employers must introduce medical evidence demonstrating the
employee posed a health or safety risk to themselves or others.
(See Raytheon Co. v. Fair Employment & Housing Com. (1989)
212 Cal.App.3d 1242, 1251–1252; Cal. Code Regs., tit. 2, § 11067,
subd. (e).) Plaintiffs provide no similar requirement in the
religious accommodation context.
In any event, Scanlan’s declaration established AUSD
based its vaccine mandate on reliable medical advice. He stated,
“In deciding to adopt a vaccine mandate for employees, [AUSD]
also took into consideration information from the [CDC] and the
Los Angeles County Department of Public Health, among other
public health agencies, that the available COVID vaccines were
safe and highly effective at curbing the spread of COVID-19 and
preventing serious illness, hospitalization and death, that the
majority of new COVID-19 infections were occurring in people
who had not been vaccinated against COVID, and that masking
and social distancing alone were not sufficient to stop the
transmission of COVID-19 (especially with respect to the [Delta]
variant).”
Finally, although Plaintiffs include a stray assertion the
trial court erroneously admitted Scanlan’s declaration, they have
19
not supported that with any argument the court erroneously
overruled their objections to the declaration. Accordingly,
Scanlan’s testimony remains competent evidence in the record,
and we may consider it on appeal. (See Fritelli, Inc. v. 350 North
Canon Drive, LP (2011) 202 Cal.App.4th 35, 41 [the appellants
forfeited contentions of error regarding the trial court’s
evidentiary rulings by failing to attack them on appeal]; City of
Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287
(Adam) [bare assertions of error are insufficient; “an appellant
must supply the reviewing court with some cogent argument
supported by legal analysis . . . .”].)
Plaintiffs also criticize AUSD for making a blanket
immunization decision without individually assessing the
medical conditions and work responsibilities of each Plaintiff. But
again, Plaintiffs’ only support for this position comes from
inapposite disability cases addressing the health or safety risk
defense. An employer can only establish this defense by
conducting an individual inquiry into the employee’s medical
condition. (Sterling Transit Co. v. Fair Employment Practice
Commission (1981) 121 Cal.App.3d 791, 798; E.E.O.C. v. United
Parcel Service, Inc. (9th Cir. 2005) 424 F.3d 1060, 1075.)
Plaintiffs point to no authority holding employers must make a
similar showing in the religious accommodation context. To the
extent Plaintiffs’ reasoning has some persuasive force, Plaintiffs
submitted no evidence showing how individualized assessments
of their medical conditions could have made a difference.
In sum, the trial court correctly concluded there were no
triable issues of fact as to the religious accommodation cause of
action.
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IV. Plaintiffs Forfeited Their Due Process Argument
Plaintiffs lastly argue the trial court violated their right to
due process by considering the undue hardship defense, which
AUSD did not allege in the answer, and by continuing the
summary judgment hearing five days to cure AUSD’s one-day-
late summary judgment motion. Plaintiffs forfeited this
argument by not making it below. (See Briley v. City of West
Covina (2021) 66 Cal.App.5th 119, 138.) In any event, it is
uncontested AUSD did plead as affirmative defenses both failure
to state an actionable failure to accommodate claim as well as
that AUSD’s actions were taken for legitimate, nondiscriminatory
reasons. Plaintiffs also forfeited this argument by failing to
provide any analysis as to how the court’s actions violated their
due process rights or caused them prejudice. (Adam, supra,
211 Cal.App.4th at pp. 286–287.)
DISPOSITION
The judgment is affirmed. AUSD is entitled to costs on
appeal. (See Cal. Rules of Court, rule 8.278(a)(1).)
RICHARDSON, J.
WE CONCUR:
CHAVEZ, Acting P. J.
GOORVITCH, J.*
* Judge of the Superior Court of Los Angeles County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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