The opinion
Filed 3/16/23
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
GABRIELA LOPEZ,
Plaintiff and Appellant,
A163133
v.
LA CASA DE LAS MADRES, (City & County of San Francisco
Super. Ct. No. CGC-18-565637)
Defendant and Respondent.
Gabriela Lopez filed the underlying action for employment
discrimination and wrongful termination against La Casa de Las Madres (La
Casa). La Casa is a non-profit organization that provides services to women
and children who are victims of domestic violence. Lopez worked for La Casa
at various times between 2002 and 2017. In 2014, she accepted the position
of shelter manager at La Casa’s residential shelter for domestic violence
victims. In September 2016, Lopez gave birth to a baby girl. Thereafter she
did not return to work due to events that gave rise to this action. Following a
bench trial, the court entered judgment in favor of La Casa. On appeal,
Lopez contends the trial court misapplied provisions of the Fair Employment
and Housing Act (FEHA) that require an employer to provide reasonable
accommodations for a pregnancy-related condition. (Govt. Code, § 12940 et
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
this opinion is certified for publication with the exception of “DISCUSSION”
parts I.B, I.D, and II.
1
seq.; subsequent statutory references are to this code.) We affirm the
judgment.
In the published portion of our decision, we observe there are no
California cases articulating the elements of a pregnancy discrimination
claim under section 12945, subdivision (a)(3)(A) (section 12945(a)(3)(A)).
Drawing from the statutory language and applicable regulatory law, as well
as pertinent FEHA case law, we conclude a cause of action under section
12945(a)(3)(A) requires proof that: (1) the plaintiff had a condition related to
pregnancy, childbirth, or a related medical condition; (2) the plaintiff
requested accommodation of this condition, with the advice of her health care
provider; (3) the plaintiff’s employer refused to provide a reasonable
accommodation; and (4) with the reasonable accommodation, the plaintiff
could have performed the essential functions of the job. Here, the trial court
applied a correct understanding of these elements and, contrary to plaintiff's
contentions otherwise, properly placed the burden on plaintiff to prove that
she had a condition related to pregnancy and that she was able to perform
the essential functions of her job with reasonable accommodation. (See e.g.
Green v. State of California (2007) 42 Cal.4th 254, 262, 264 (Green).)
In the unpublished portion of this opinion, we reject Lopez’s argument
that she proved La Casa engaged in an unlawful employment practice under
section 12945 and section 12940 by failing to accommodate Lopez’s
pregnancy-related disability.
BACKGROUND
I. Lopez’s Claims
In June 2018, Lopez filed her operative first amended complaint, in
which she alleged the following material facts: In April 2016, Lopez notified
La Casa of her pregnancy and that her expected due date was in September.
2
She was placed on modified work duty a few months before her due date, and
“[s]everal” weeks before her due date she was placed off work due to
conditions or symptoms relating to her pregnancy. After giving birth, Lopez
experienced complications and provided La Casa with periodic certifications
relating to her condition. During this period, Lopez alleged, La Casa began
sending Lopez harassing communications, failed to engage in an interactive
process to determine if Lopez’s disability could be accommodated, and refused
to provide two “modest” accommodations suggested by Lopez’s doctor. Lopez
attempted to convince La Casa to allow her to return to work, but her efforts
were “rebuffed,” and ultimately, she was forced out of her job “due to normal
complications experienced after her pregnancy.” Lopez alleged further that
she applied for work elsewhere but was denied a job because La Casa
misrepresented the reasons for Lopez’s termination.
Lopez incorporated her factual allegations into nine causes of action,
the first six of which alleged violations of the FEHA: (1) pregnancy
discrimination (§ 12940, subd. (a)); (2) harassment because of pregnancy
(§ 12940, subd. (j)); (3) failure to prevent discrimination and harassment
(§ 12940, subd. (k)); (4) disability discrimination (§ 12940, subd. (h)); (5)
failure to accommodate (§ 12940, subd. (m)); and (6) failure to engage in an
interactive process (§ 12940, subd. (n)). Lopez’s other claims were for (7)
wrongful termination, (8) intentional infliction of emotional distress, and (9)
preventing future employment by misrepresentation.
In November 2018, La Casa was granted summary adjudication of four
of Lopez’s claims, which rulings are not at issue in this appeal. What
remained were causes of action for pregnancy discrimination and failure to
prevent discrimination, disability discrimination, failure to accommodate a
3
disability, and wrongful termination. In March and April 2021, a court trial
was held to resolve Lopez’s remaining causes of action.
II. The Trial Evidence
The trial court received numerous exhibits into evidence and heard
testimony from Lopez and four management-level employees of La Casa. We
use the trial court’s statement of decision as our primary source in
summarizing the evidence, quoting pertinent passages as appropriate.1
In December 2014, Lopez was hired as La Casa’s shelter manager. Her
duties included supervising approximately 10 of La Casa’s 32 employees: a
cook; a facilities worker; four or five program advocates; two case managers;
and two overnight crisis counselors. The shelter manager and her
subordinates, aside from the cook and facilities worker, interact directly with
the domestic-violence victims who come to the shelter for help. When Lopez
held this position, she was expected to work 30 hours a week at the shelter,
plus 10 hours on administrative tasks, and to always be on call. Lopez was
also responsible for covering shifts when a subordinate was absent, whether
by arranging for another employee to fill in or covering the shift herself.
The shelter manager handles emergency situations and is responsible
for delivering “domestic-violence services 24/7.” The location of the shelter is
confidential because the residents are in danger and escaping violent
personal relationships. The residents themselves can also be dangerous. For
example, some victims experience “murder/suicidal ideations,” and some
1 Lopez did not object to the trial court’s tentative statement of
decision which was subsequently adopted by the court and incorporated into
a judgment in favor of La Casa. “The statement of decision provides the trial
court’s reasoning on disputed issues and is our touchstone to determine
whether or not the trial court’s decision is supported by the facts and the
law.” (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.)
4
bring firearms to the shelter. La Casa provides counseling to all shelter staff
due to “secondary trauma,” and La Casa’s trial witnesses all confirmed the
stressful nature of working at the shelter. Lopez testified that she “did not
generally find the work to be stressful.”
In late February 2016, La Casa learned that Lopez was pregnant. La
Casa’s human resources manager, Ms. Arias, advised Lopez of her pregnancy-
disability rights in a letter dated April 7. Those rights included four months
of pregnancy-disability leave and a concurrent 12-week “ ‘baby-bonding’ ”
leave.
On August 16, 2016, Lopez began her pregnancy-disability leave
pursuant to the advice of her doctor. The following day, Arias confirmed in
writing that Lopez’s return-to-work date was November 8. While Lopez was
on leave, her shelter-manager duties were covered by “several” people,
including La Casa’s executive director, Ms. Black, and Lopez’s direct
supervisor, Ms. Bergson. Arias and others covered Lopez’s administrative
duties. Arias testified that “this ‘pitching in’ coverage was not sustainable
indefinitely.”
Lopez’s leave was extended beyond November 8, 2016, pursuant to a
series of certifications from Lopez’s doctor. When La Casa extended Lopez’s
leave to December 16, Arias reminded Lopez that her four-month pregnancy-
disability leave would then have concluded. Thereafter, La Casa received a
work-status report from Kaiser, which stated that Lopez should not work
from December 17, 2016 until January 14, 2017. By December 17, “Lopez
had received the full 4 months of [pregnancy-disability leave] required by
statute,” which included the concurrent “12 weeks of baby-bonding leave
provided by La Casa.”
5
On December 20, Arias notified Lopez that La Casa would treat the
work-status report from Kaiser as a “request for accommodation under
FEHA.” Over the course of the following month, Lopez submitted three
versions of a form questionnaire entitled “Instructions to Health Care
Provider,” all signed by Ms. Campion, who identified herself as a social
worker at Kaiser specializing in mental health. We use the date of Campion’s
signature to distinguish among these forms.
On a form dated January 3, 2017, Campion reported that Lopez had a
“ ‘moderate-severe’ ” disability that affected her ability to perform her job by
limiting her from engaging in activities that are “ ‘stress producing or require
sustained attention,’ and those that ‘require the making of important or
significant decisions.’ ” Campion stated that this disability necessitated two
modifications to Lopez’s work duties: “ ‘1) time off to allow patient to
continue mental health [treatment], both groups and individual therapy
2) flexible/shortened workdays if patient finds nature of the work or stress of
the work overwhelming and triggering of severe anxiety/depressive
symptoms.’ ” On a section of the form inquiring how long these limitations
would be necessary, Campion stated “ ‘It is unknown,’ ” and when asked to
provide a phone number for follow-up questions, Campion stated, “NA,
patient had to sign Kaiser release of information and completing this form
was the only authorized action.”
La Casa made a determination that it could not accommodate the
limitations that Campion proposed. It could provide time off for therapy, but
could not function indefinitely without a shelter manager. Nor could that job
be “performed without making significant decisions and facing stressful
situations at unpredictable times.”
6
On January 6, 2017, Arias notified Lopez that La Casa was unable to
accommodate the limitations proposed by Campion. Instead, La Casa offered
to extend Lopez’s leave until January 14, and upon her return to work to
assign her to a “Data Entry Specialist position,” which had flexible hours and
did not involve stressful tasks. The position paid an hourly wage, which was
less pay than Lopez received as a shelter manager, but Lopez was offered
higher pay than others who had filled the position. This data-entry position
was offered as a “temporary accommodation,” with the expectation that Lopez
would return to her shelter management role. Arias testified that she told
Lopez during a phone conversation that the data-entry position would be
temporary. Moreover, Lopez knew that the position was being offered to her
as a temporary accommodation because the same offer had previously been
accepted by three of Lopez’s subordinates, while they were out on disability
leave.
Lopez advised La Casa she was not interested in the data-entry
position and that she was able to return to her role as shelter manager.
Lopez submitted another health care provider form, signed by Campion on
January 11, 2017. This partially completed form contained the following
statement: “ ‘Advised by patient to just complete modification section for
employer.’ ” In answer to a question about proposed modifications, Campion
stated, “ ‘Modifications recommended include time off to continue individual
therapy sessions and group therapy.’ ” Campion reported that it was
“unknown” how long modifications would be necessary.
La Casa advised Lopez that the January 11 form was incomplete and
asked Lopez to submit a complete updated form. Lopez submitted another
form from Campion dated January 26, 2017. Campion stated that she had
7
not seen Lopez in a month because Lopez’s insurance had lapsed.2 Therefore,
Campion was unable to assess the severity of Lopez’s disability, whether
Lopez was able to perform job duties, or the duration of any job limitations.
After Lopez submitted the January 26 form, she did not respond to “further
repeated inquiries” from La Casa.
On February 6, 2017, La Casa sent a letter to Lopez stating that La
Casa considered Lopez to have “elected to discontinue her employment.”
That same day, Lopez went to La Casa’s administrative office to talk to the
executive director without an appointment, but Ms. Black was not there.
Arias testified that Lopez was angry, threw her keys on Arias’s desk, and
stormed away, at which point she was considered a former employee. Lopez
testified that she left her keys with Arias because she thought she had been
terminated, but she acknowledged that La Casa never asked her to turn in
her keys. Lopez never stated that she resigned or submitted a written
resignation and no one at La Casa told Lopez she was terminated.
C. The Trial Court’s Findings
The trial court found that Lopez failed to carry her burden of proving,
by a preponderance of the evidence, one or more element of each claim she
pursued at trial.
2 Lopez was advised that she was required to pay her portion of her
health-insurance premiums while she was on leave, but failed to “timely pay
those amounts and never paid them in full.” La Casa paid Lopez’s premiums
through December 31, 2016. Lopez was also advised that after her
pregnancy-disability leave expired, her health care coverage would end on
December 31 unless she maintained that coverage under the Consolidated
Omnibus Budget Reconciliation Act of 1985 (COBRA). Lopez did not exercise
her COBRA option.
8
1. Pregnancy Discrimination and Failure to Prevent
Discrimination
At trial, Lopez based her pregnancy discrimination claim on section
12945(a)(3)(A), which makes it unlawful “[f]or an employer to refuse to
provide reasonable accommodation for an employee for a condition related to
pregnancy, childbirth, or a related medical condition, if the employee so
requests, with the advice of the employee’s health care provider.” The trial
court found that Lopez failed to establish three elements it considered
essential to this claim: that she (1) “had a condition related to pregnancy”;
(2) “could perform the essential functions of her job”; and (3) “was denied a
reasonable accommodation,” as requested on the advice of a health-care
provider.
Regarding the first finding, there was evidence that after Lopez had
her baby and exhausted her pregnancy-disability leave, she sought an
extension of her leave, but the basis for that extension was not established at
trial. No medical professional testified, no medical records were offered into
evidence, and Lopez “repeatedly objected” to evidence regarding the “medical
condition” that formed the basis of her claim. The forms Campion signed did
not contain a diagnosis and, although they assert a mental-health related
disability, do not so much as mention pregnancy. Arias testified that La Casa
was unaware of the reason Lopez sought to extend her leave. Lopez testified
that after her daughter was born, she felt sad and depressed, attended
therapy and was given medication, which, the court found, suggested that
Lopez may have had post-partum depression, but Lopez was impeached with
evidence that she was depressed and experiencing stress before her
pregnancy leave began. For all of these reasons, the court concluded that
Lopez failed to establish that the condition for which she sought an
accommodation was pregnancy related.
9
Even assuming that La Casa “inferred” Lopez was suffering from
pregnancy-related depression, Lopez failed to establish that “she could
perform the essential functions of her job with a reasonable accommodation,”
the court found. The court based this finding on evidence that Campion had
“advised against activities that produced stress and that required making
important decisions,” and that the shelter-manager job “was inherently
stressful and required quick decisions that sometimes meant the difference
between life and death.” In reaching this conclusion, the court found that
Lopez’s testimony that she did not find the duties of the shelter manager to
be stressful was not credible.
Finally, the court found that Lopez failed to prove that she was denied
a reasonable accommodation. The court found that La Casa would have
allowed Lopez time off to attend therapy, and that a “flexible or shortened
workday” if Lopez found her work stressful was not a reasonable
accommodation. The court based this ruling on evidence that La Casa had
discussed options that would have enabled them to accommodate this second
suggestion of Campion’s, including hiring a “ ‘shadow’ shelter manager” to
step in if Lopez had to leave work due to stress or anxiety. La Casa had
concluded this solution was “unworkable” for multiple reasons, including the
cost of paying two people to do the same job, and the confusion for staff of
having two managers. La Casa was also concerned that effective
communication would be critical for a shadow manager to succeed and Lopez
had a documented history of poor communication with her immediate
supervisor, Ms. Bergson. During the period Lopez was on leave, Bergson had
assumed many of Lopez’s duties, with assistance from others, but that
accommodation could not be sustained indefinitely, the court found.
10
The court also based its ruling on evidence that La Casa offered Lopez
the temporary assignment of a data-entry position, which the court found
was a reasonable accommodation, and that Lopez told Arias she would rather
quit than take that position. The court also found no evidence of a
discriminatory motive by La Casa, but rather that “La Casa expected Ms.
Lopez to return to her job as a shelter manager and made numerous efforts to
effect that result.”
Because Lopez failed to prove pregnancy discrimination, her related
claim for failing to prevent discrimination necessarily failed, the trial court
found. (Citing Trujillo v. North City Transit Dist. (1998) 63 Cal.App.4th 280
(Trujillo).)
2. Disability Discrimination
Lopez alleged that La Casa committed a different FEHA violation by
terminating Lopez’s employment because of her disability. Section 12940,
subdivision (a) (section 12940(a)) makes it unlawful to discriminate against
any person because of a physical or mental disability, and the trial court
found that clinical depression and post-partum depression are mental
disabilities covered by the FEHA. (§ 12926, subd. (j)(1).) To establish
discrimination based on a disability, the court found, Lopez was required to
prove the following elements: (1) she suffers from a disability; (2) she is
otherwise qualified to do her job, with or without an accommodation; and (3)
she suffered an adverse employment action because of her disability. (Citing
Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)
The court found that Lopez failed to prove this claim because, assuming that
she suffered from depression, she did not prove that she was otherwise
qualified to perform the shelter-manager job, given her need to avoid
stressful duties.
11
3. Failure to Accommodate Disability
Lopez’s fifth cause of action was for violating the FEHA by failing to
accommodate Lopez’s disability. Section 12940, subdivision (m) (section
12940(m)) makes it unlawful for an employer to fail “to make reasonable
accommodation for the known physical or mental disability of an . . .
employee.” The trial court found that the elements of a failure to
accommodate claim are: (1) the plaintiff has a disability covered by the
FEHA; (2) the plaintiff can perform essential job functions of the position;
and (3) the employer failed reasonably to accommodate the plaintiff’s
disability. (Citing Hernandez v. Rancho Santiago Community College Dist.
(2018) 22 Cal.App.5th 1187, 1193–1194.) Re-affirming its prior findings, the
court concluded that Lopez did not carry her burden of proving the second
and third elements of this claim.
4. Wrongful Termination
Lopez’s final claim was for wrongful termination in violation of public
policy, a claim premised on La Casa’s alleged violation of the FEHA. The
trial court found this claim failed because La Casa did not violate the FEHA.
DISCUSSION
Lopez contends the judgment must be reversed because she proved that
La Casa’s refusal to grant the modifications to her work duties requested by
Campion violated two distinct provisions of the FEHA—section 12945 and
section 12940—and, therefore, the trial court must reconsider whether Lopez
was wrongfully terminated. “In reviewing a judgment based upon a
statement of decision following a bench trial, we review questions of law de
novo. [Citation.] We apply a substantial evidence standard of review to the
trial court’s findings of fact. [Citation.] Under this deferential standard of
review, findings of fact are liberally construed to support the judgment and
12
we consider the evidence in the light most favorable to the prevailing party,
drawing all reasonable inferences in support of the findings.” (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981.)
I. Pregnancy Discrimination Under Section 12945
Lopez first contends that the trial court applied the wrong test for
evaluating a pregnancy discrimination claim based on section 12945, and
that she satisfied all requirements for proving this claim. La Casa counters
that (1) Lopez should not be permitted to rely on section 12945 because she
invoked that provision for the first time at trial and, in any event, (2) section
12945 was properly applied. We reject La Casa’s first contention but agree
with the second.
A. Statutory Overview
Pregnancy discrimination is an unlawful employment practice under
provisions of the FEHA that prohibit discrimination on the basis of sex,
disability, and pregnancy-related conditions. Discrimination based on the
fact that a person is pregnant, has given birth, is breastfeeding, or has a
related medical condition is a form of sex discrimination, prohibited by
section 12940(a). (§ 12926, subd. (r); see e.g., Badih v. Myers (1995) 36
Cal.App.4th 1289.) And discrimination based on the fact that a person
suffers from pregnancy-related depression is a form of disability
discrimination, which is also prohibited by section 12940(a). (§ 12926,
subd. (j).) Moreover, section 12945 (the statute Lopez relies on first)
supplements provisions of section 12926 and 12940 that apply to pregnancy-
related conditions by delineating additional employment practices that are
unlawful “unless based upon a bona fide occupational qualification.”
(§ 12945, subd. (a) (section 12945(a)).)
13
Section 12945 addresses two distinct protections available to employees
with conditions relating to pregnancy. First, employees disabled by such a
condition are entitled to pregnancy-disability leave. Specifically, it is
unlawful for an employer to refuse to allow an employee disabled by a
condition related to pregnancy to take a leave of absence for a reasonable
period, not to exceed four months. (§ 12945(a)(1).) And during the disability
leave period, it is unlawful for the employer to refuse to maintain insurance
coverage for the employee. (§ 12945(a)(2).)
Second, section 12945 entitles an employee to accommodation of a
condition relating to pregnancy in specified situations. It is unlawful for an
employer to refuse to provide a reasonable accommodation for a condition
related to pregnancy, whether or not that condition amounts to a disability, if
such accommodation is requested by the employee with the advice of the
employee’s health care provider. (§ 12945(a)(2)(A).) It is also an unlawful
employment practice to refuse to accommodate a request temporarily to
transfer a pregnant employee to a less strenuous position if the employer has
a policy of making such transfers for temporarily disabled employees, or if the
temporary transfer is requested with the advice of the employee’s physician
and such a “transfer can be reasonably accommodated.” (§ 12945(a)(3)(B)–
(C).)
In construing these protections afforded by section 12945, we are
guided by subdivision (b) of this statute, which states: “This section shall not
be construed to affect any other provision of law relating to sex
discrimination or pregnancy, or in any way to diminish the coverage of
pregnancy, childbirth, or a medical condition related to pregnancy or
childbirth under any other provision of this part, including subdivision (a) of
Section 12940.”
14
B. Lopez Relied on Section 12945 at Trial
As La Casa contends, Lopez did not allege pregnancy discrimination
under section 12945 in her complaint. Her first cause of action was for
pregnancy discrimination in violation of the FEHA, but her pleaded theory
was that “pregnancy was a motivating factor in [La Casa’s] decision to
terminate [Lopez’s] employment and to commit other acts of discrimination
against her.” Lopez based this claim on section 12940(a) and also cited
section 12926, but her complaint did not cite section 12945. Moreover, when
the superior court denied La Casa summary adjudication of Lopez’s
pregnancy discrimination claim it did not base its ruling on section 12945 or
reference this statute in its order.
Nevertheless, Lopez’s theory at trial was that La Casa discriminated
against her due to a pregnancy-related condition by denying her reasonable
accommodation in violation of section 12945(a)(3)(A). As best we can
determine, La Casa did not object to Lopez pursuing this distinct theory at
trial. Moreover, the record shows that neither party objected to the
statement of decision, which frames our appellate review. Thus, we reject La
Casa’s contention that Lopez is precluded from relying on section 12945 in
arguing that she proved her claim for pregnancy discrimination. However,
Lopez fails to show that the trial court’s decision as to this particular claim is
unsupported by the law or the evidence.
C. The Elements of Lopez’s Discrimination Claim
Lopez argues the trial court committed an error of law by placing the
burden on Lopez to prove that (1) she had a condition related to pregnancy,
and (2) she could otherwise perform the essential functions of the shelter-
manager position. According to Lopez, these two elements do not apply to a
15
claim for pregnancy discrimination that is premised on a violation of section
12945(a)(3)(A).
The parties cite no California case that delineates the elements of a
discrimination claim under section 12945. However, federal cases evaluating
alleged violations of section 12945(a)(3)(A) use essentially the same test
employed by the trial court in the present case. (Graves v. Pau Hana Group,
LLC (E.D.Cal., Nov. 8, 2013, No. 2:13-CV-01278-JAM-EFB) 2013
U.S.Dist.Lexis 161303, at p. *15; see also Gonzales v. Marriott International,
Inc. (C.D. Cal. 2015) 142 F.Supp.3d 961, 969 (Gonzales) [collecting cases].)
Lopez acknowledges this fact, but nevertheless contends that requiring her to
prove the two elements listed above was inconsistent with the plain language
of section 12495(a)(3)(A) and the interpretation of this provision adopted by
the Fair Employment and Housing Commission (FEHC), which promulgates
regulations implementing the FEHA.3 On the contrary, we conclude the
language of the statute and FEHC regulations defeat Lopez’s arguments.
The language of section 12945(a)(3)(A) requires a successful plaintiff to
prove at least three things: (1) that her employer “refuse[d] to provide a
reasonable accommodation,” (2) “for a condition related to pregnancy,
childbirth, or a related medical condition,” (3) when the employee “so
request[ed], with the advice of [her] health care provider.” (§ 12945(a)(3)(A);
see Gonzales, supra, 142 F.Supp.3d at p. 969.) A “ ‘[r]easonable
accommodation’ of an employee affected by pregnancy” is defined by FEHC
3 Regulations implementing the FEHA are found in California Code of
Regulations, title 2, sections 11006 et seq. (subsequent references to
regulations are to these FEHA regulations). Courts give substantial
deference to the FEHC’s interpretation of the FEHA unless the agency’s
interpretation “is ‘clearly erroneous or unauthorized.’ ” (Kelly v. Methodist
Hospital of So. California (2000) 22 Cal.4th 1108, 1118.)
16
regulation as “any change in the work environment or in the way a job is
customarily done that is effective in enabling an employee to perform the
essential functions of a job.” (Regs., § 11035(s); see also Gonzales, at p. 970.)
Thus, a fourth element the successful plaintiff must prove is that, with the
requested accommodation, she is able “to perform the essential functions of”
the job in question. (Regs., § 11035(s).)
Lopez contends she was not required to prove she had a condition
related to pregnancy because section 12945(a)(3)(A) does not actually state
that a plaintiff must “prove” this fact. She contends further that the FEHC
imposes no such burden on a plaintiff, citing regulation 11050. Lopez’s
construction of section 12945(a)(3)(A) ignores express language in the statute
requiring that individuals seeking reasonable accommodation must have “a
condition related to pregnancy, childbirth, or a related medical condition.”
The FEHC has determined that this phrase “means a physical or mental
condition intrinsic to pregnancy or childbirth.” (Regs., § 11035(d); see also
Regs., § 11040 [addressing reasonable accommodations made by employees
“affected by pregnancy”].) Lopez’s theory also ignores basic principles of tort
law requiring a private plaintiff to prove that a statute upon which she relies
has actually been violated. (See Trujillo, supra, 63 Cal.App.4th at pp. 286–
288.) And Lopez overlooks that regulation section 11050 on its face allows
employers to require medical certification of the advisability of a “reasonable
accommodation . . . because of pregnancy.” (Italics added.) Nothing about
this regulation excuses a plaintiff from proving all elements of her claim for
pregnancy discrimination under section 12945(a)(3)(A).
Lopez is no more successful with her second challenge to the trial
court’s legal test. Section 12945(a)(3)(A) does not explicitly address whether
a person claiming she was denied a reasonable accommodation must be able,
17
with accommodation, to perform essential job functions, but the statute does
apply exclusively to accommodations that are reasonable, which the FEHC
has defined as those accommodations that “enabl[e] an employee to perform
the essential functions of a job.” (Regs., § 11035(s).) This FEHA regulation is
reflective of pertinent case law, which defines 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.’ ” (Scotch v. Art
Institute of California (2009) 173 Cal.App.4th 986, 1010; see also Kaur v.
Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 345 (Kaur); Nadaf-
Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 973–978
(Nadaf-Rahrov).)
Our Supreme Court has held that “an adverse employment action on
the basis of disability is not prohibited [by the FEHA] if the disability renders
the employee unable to perform his or her essential duties, even with
reasonable accommodation.” (Green, supra, 42 Cal.4th at p. 264, italics
omitted; see also Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331,
1337 (Sanchez).) And the burden of proof is on the plaintiff to prove this
point: “[I]n order to establish that a defendant employer has discriminated
on the basis of disability in violation of the FEHA, the plaintiff employee
bears the burden of proving he or she was able to do the job, with or without
reasonable accommodation.” (Green, at p. 262.) Following Green, another
division of this court held, in the specific context of a claim for reasonable
accommodation of a physical or mental disability under section 12940(m),
that “the plaintiff bears the burden of proving he or she was able to perform
the essential functions of the job with accommodation.” (Nadaf-Rahrov,
supra, 166 Cal.App.4th at p. 978.) Lopez points to no statutory language
18
suggesting this same rule does not apply when a plaintiff bases her
discrimination claim on an alleged violation of section 12945.
Lopez contends this requirement does not apply when a plaintiff with a
pregnancy-related condition claims she was denied a reasonable
accommodation under section 12945 because the protections afforded by
section 12945(a)(3)(A) must be construed “more broadly and differently than
Section 12940.” We agree that section 12945 affords important protections to
employees affected by pregnancy, over and above the protections of section
12940. These additional protections include a right to up to four months of
pregnancy-disability leave (§ 12945(a)(1)), and a right to temporary transfer
to a less strenuous job if such a “transfer can be reasonably accommodated”
(§ 12945(a)(3)). Section 12945(a)(3)(A) also protects a right to reasonable
accommodation for a condition associated with pregnancy or childbirth, even
when this condition does not rise to the level of a formally recognized
disability. Section 12945(a)(3)(A) is, in this regard, broader than section
12940(m), which addresses an employer’s obligation to accommodate
“disability.” But none of these provisions entitles an employee to a job she
cannot perform.
La Casa overreaches in contending that once an employee has
exhausted her pregnancy-disability leave, she has no further right to an
accommodation under section 12945. The employer’s obligation to
accommodate pregnancy-related conditions in section 12945(a)(3)(A) is not
limited to the specific accommodations discussed in other subdivisions of
section 12945. Thus, a plaintiff who elects to rely on section 12945 is not
limited to arguing that she was denied four months of pregnancy-disability
leave or a temporary alternative work assignment, but may also allege
discrimination based on the failure to provide some other reasonable
19
accommodation of a pregnancy-related condition. However, her burden of
proving that she was denied a reasonable accommodation within the meaning
of the FEHA is not diminished by any language we find in section 12945. Nor
do FEHC regulations entitle her to a specific form of accommodation. A
modified work schedule “may” be a reasonable accommodation in an
appropriate case, regulation section 11065(p) instructs, but that does not
make it a reasonable accommodation as a matter of law in this case, as Lopez
asserts.
Contending that a request for accommodation of a pregnancy-related
condition should be treated differently from requests to accommodate other
types of disabilities under section 12940, Lopez points out that the FEHC has
recognized that “[i]n general, pregnancy accommodation can be expected to be
less costly than average disability accommodations because no special
equipment is usually needed to accommodate a pregnant woman and the
accommodation is needed for a short, finite period of time.” (Cal. Reg. Notice
Register 2012, No. 9-Z (Mar. 2, 2012) at p. 276.)4 These factors may be
relevant to the question whether a request for accommodation of a
pregnancy-related condition is reasonable. They do not support Lopez’s
contention that a plaintiff who claims she was denied a reasonable
accommodation under section 12945 should be excused from having to prove
that, with accommodation, she was able to perform the essential functions of
her job.
4 Lopez requests judicial notice of California Regulatory Notice
Register, Register 2012, No. 9-Z. She contends that portions of the notice
that discuss 2012 amendment to FEHA regulations are relevant to interpret
section 12945. We grant the request only as to portions of the notice
document that address FEHA regulations. We find nothing in this material
that supports Lopez’s construction of section 12945(a)(3)(A).
20
Lopez also points out that while undue burden is a statutory defense to
a failure to accommodate claim brought under section 12940(m), section
12945 contains no reference to this affirmative defense. Lopez fails to explain
why this distinction between the two provisions supports her attack on the
test the trial court used to evaluate the elements of her pregnancy
discrimination claim. Her related argument that the trial court relied on an
undue burden defense in concluding that Lopez failed to prove her pregnancy
discrimination claim simply misconstrues the statement of decision. When
the statement of decision discusses evidence that the options of La Casa
“hiring a ‘shadow’ shelter manager” or continuing indefinitely to rely on other
managers to fill in were unworkable, this was in support of findings that
Lopez had not proven the elements of her cause of action. Specifically, she
had “not met her burden of proving that she could perform the essential
functions of her job” or that the requested accommodation of allowing her to
leave when the work became too stressful was “reasonable.”
Finally, Lopez and La Casa both rely on Sanchez, supra, 213
Cal.App.4th at p. 1334, a case involving an employee placed on bed rest early
in her high-risk pregnancy. The woman was terminated from her job while
pregnant and on a temporary leave of absence, and she alleged “she was fired
because of her pregnancy, her pregnancy-related disability and/or her
requests for accommodations.” (Id. at p. 1335.) The trial court sustained a
demurrer to the plaintiff’s complaint, finding she could not state a claim
under section 12940 of the FEHA based on pregnancy-related disability
because she had received all the disability leave mandated by section 12945.
(Ibid.) This ruling was reversed on appeal. (Id. at p. 1334.)
The Sanchez court found that the fact the plaintiff had received four
months of disability leave under section 12945 did not preclude her from
21
alleging viable FEHA-related claims under provisions of section 12940 that
prohibit sex discrimination and disability discrimination because section
12945 augments rather than replaces FEHA provisions otherwise applicable
to pregnancy-related disability. (Sanchez, supra, 213 Cal.App.4th at
pp. 1338–1339.) Moreover, the fact that the plaintiff had exhausted all
available leave under section 12945 did not preclude her from alleging a
viable claim under section 12940(m) for denying the reasonable
accommodation of an additional, finite leave until the plaintiff gave birth.
(Id. at p. 1341.) In reaching this conclusion, the court reasoned that the
plaintiff had alleged facts sufficient to show that if the employer had granted
her request for additional leave until she gave birth, she would then have
been able to perform the essential functions of her job. (Id. at pp. 1340–
1341.)
Sanchez is of limited assistance because the plaintiff did not rely on
section 12945, so the Sanchez court had no occasion to address the elements
of a discrimination claim brought under section 12945. Beyond that, the case
was before the court of appeal at the pleading stage based on a discrete fact
pattern: A pregnant plaintiff who received four months of pregnancy-
disability leave was denied additional leave for the finite period until she
gave birth. (Sanchez, supra, 213 Cal.App.4th at pp. 1334–1335.) Contrary to
Lopez’s appellate argument, Sanchez does not demonstrate that the rights
conferred under section 12945 are broader or qualitatively more important
than rights conferred under section 12940, but instead confirms that these
two provisions coexist, neither displacing the other. (Id. at pp. 1338–1339.)
On the other hand, Sanchez does not support La Casa’s appellate argument
that once an employee receives four months of pregnancy-disability leave, she
has no further right to any other accommodation under section 12945. That
22
issue was never addressed in Sanchez since the only accommodation the
plaintiff’ requested was for an additional period of disability leave pursuant
to section 12940(m). (Id. at pp. 1334–1335.)
Although Sanchez does not address the elements of a pregnancy
discrimination claim brought under section 12945, it does confirm the settled
principle that “the FEHA does not prohibit an employer from discharging an
employee with a physical [or mental] disability or medical condition who ‘is
unable to perform his or her essential duties even with reasonable
accommodations, or cannot perform those duties in a manner that would not
endanger his or her health or safety or the health or safety of others even
with reasonable accommodations.’ ” (Sanchez, supra, 213 Cal.App.4th at
p. 1337.) Thus, Sanchez is not authority for Lopez’s contention that she was
not required to show that she was otherwise qualified to perform the
essential functions of her job.
In summary, we find no support for Lopez’s construction of section
12945(a)(3)(A) in the statutory language, FEHC regulations or pertinent case
law, and accordingly we reject her contention that the test the trial court
used to evaluate her pregnancy discrimination claim requires us to reverse
the judgment.
D. Challenges to the Trial Court’s Factual Findings
Lopez makes two additional arguments regarding the trial court’s
findings relating to Lopez’s section 12945 claim.
First, Lopez contends that certifications from her medical provider
were sufficient as a matter of law to establish that she had a condition
related to pregnancy. In making this argument, Lopez fails to distinguish
between certifications from her doctor that pertained to her pregnancy-
disability leave and the forms Campion subsequently completed, after Lopez’s
23
four months of disability leave ended in December 2016. The disputed issue
at trial was whether Lopez had a condition related to pregnancy after she
completed her disability leave.
As discussed, the trial court found Lopez failed to prove that after her
pregnancy-disability leave ended, she had a condition relating to pregnancy.
“The substantial evidence standard of review takes on a unique formulation
where, as here, ‘the trier of fact has expressly or implicitly concluded that the
party with the burden of proof did not carry the burden and that party
appeals.’ [Citations.] ‘[W]here the issue on appeal turns on a failure of proof
at trial, the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.’ [Citation.]
Specifically, we ask ‘whether the appellant’s evidence was (1) “uncontradicted
and unimpeached” and (2) “of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a
finding.” ’ ” (In re S.G. (2021) 71 Cal.App.5th 654, 671.)
Applying this standard, we conclude that the trial court did not err in
finding that Lopez failed to carry her burden of proof. The first form
Campion submitted stated that Lopez had a mental health-related disability,
but did not indicate that the disability was related to pregnancy. And three
weeks later, when Campion signed the last (incomplete) form on behalf of
Lopez, she acknowledged not knowing whether Lopez continued to suffer
from a disability. Beyond that, Lopez did not produce any medical evidence
pertaining to her diagnosis. She testified that she felt sad after the birth of
her daughter, but other evidence showed that she was depressed before she
went on disability leave.
Moreover, the trial court did not base its ruling exclusively, or even
primarily, on the failure of proof regarding the nature of Lopez’s condition
24
after mid-December. Instead, the court found that even if the evidence
supported an inference Lopez’s apparent depression was pregnancy related,
she failed to prove “that she could perform the essential functions of her job
and that she was denied a reasonable accommodation.”
Turning to Lopez’s second factual argument, she contends that the
“modest” accommodations La Casa refused to provide were reasonable “as a
matter of law.” The reasonableness of a requested accommodation is a
factual determination made by the trier of fact. (Kaur, supra, 83 Cal.App.5th
at p. 346; see also Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th
935, 953–954.) The determination is “made on a case-by-case basis, taking
into consideration such factors, including but not limited to, the employee’s
medical needs, the duration of the needed accommodation, the employer’s
legally permissible past and current practices, and other such factors, under
the totality of the circumstances.” (Regs., § 11040.)
The first accommodation evaluated by the trial court was Lopez’s
request for pregnancy-disability leave. The court did not decide whether this
was a reasonable accommodation because it found that La Casa granted the
request and provided Lopez with four months of pregnancy-disability leave,
the maximum leave required by section 12945(a)(1). Lopez does not dispute
this finding on appeal.
Instead, Lopez contends that La Casa could “easily” have left Lopez’s
position vacant or granted her an additional period of leave to “allow her to
recuperate.” Lopez posits that an additional, finite leave to recover from a
disability constitutes a reasonable accommodation under section 12940(m).
(Citing Sanchez, supra, 213 Cal.App.4th at p. 1338; Hanson v. Lucky Stores,
Inc. (1999) 74 Cal.App.4th 215, 226.) We find no evidence this issue was
raised at trial but even if was, Lopez fails to show that La Casa denied a
25
request for an additional, finite leave. The last work-status report from
Kaiser indicated that Lopez should not work until January 14, 2017, but
instead of seeking a leave for that discrete period, Lopez requested other
accommodations so that she could return to work.
As discussed in our background summary, the two modifications to the
duties of a shelter manager that Lopez requested were time off to attend
therapy and “flexible/shortened workdays” so that Lopez could leave work if
she experienced stress or anxiety. These requests were made pursuant to
Campion’s recommendation that Lopez not engage in activities that were
stressful, required sustained attention, or required her to make important or
significant decisions. On appeal, Lopez attempts to show error by asserting
that only the first of these modifications was at issue.
Lopez contends that her request for time off to attend therapy was
reasonable as a matter of law. The problem with this argument is that the
trial court found “La Casa could and would have accommodated the time off
for therapy.” In other words, Lopez was not denied this accommodation.
Lopez insists the request to attend therapy was the only accommodation she
was seeking at the time of her “termination.” Putting to one side the
question whether Lopez was terminated or instead resigned, we reject this
argument. The evidence shows that after Lopez was told that the two
modifications Campion proposed were not a reasonable accommodation that
would enable Lopez to perform as shelter manager, she attempted to undo
Campion’s recommendation by submitting additional forms. But the second
and third forms had only incomplete information, and in signing them
Campion did not withdraw or revise her initial recommendation that, for an
indefinite period, Lopez would require a flexible or shortened work schedule
so that she could leave work when she experienced stress. The second form
26
had almost no information on it, only the accurate but incomplete statement
that “modifications recommended include time off to continue individual
therapy sessions and group sessions.” (Italics added.) And the third form
frankly recounted that Campion had no current information about Lopez’s
medical condition.
Lopez also contends that a request for a modified work schedule is a
reasonable accommodation as a matter of law. This conclusory assertion is
inadequate to merit review of the finding that in this case the modification of
“flexible/shortened workdays” was not a reasonable accommodation. (See
e.g., Thee Aguila, Inc. v. Century Law Group, LLP (2019) 37 Cal.App.5th 22,
30–31 [appellant has the “ ‘responsibility to support claims of error with
citation and authority; this court is not obligated to perform that function on
appellant’s behalf’”].) Because the shelter manager needed to be available to
make important decisions at any time and in an inherently stressful
environment, the court found that a modification permitting Lopez to leave
work whenever she experienced stress or anxiety was not a reasonable
accommodation. Lopez does not dispute the evidence upon which the court
relied or otherwise show that the flexible or shortened workday recommended
by Campion was a reasonable accommodation as a matter of law in this case.
II. Failure to Accommodate Under Section 12940
Lopez contends that even if she did not prove her pregnancy
discrimination claim under section 12945(a)(3)(A), she proved that La Casa
violated section 12940(m) by refusing to modify the job duties of a shelter
manager so Lopez could return to that position.
Lopez’s primary argument is that the trial court failed properly to
analyze the second element of her reasonable accommodation claim, which
required her to prove she could perform the essential job functions of the
27
shelter-manager position. Lopez argues first, that the court misconstrued
“stress” as an essential job function despite the fact that stress is not a
fundamental job duty. It is Lopez who misconstrues the court’s discussion of
the essential job functions requirement, which was an element of all three of
the alleged FEHA violations that Lopez pursued at trial. The court found
that the essential functions of the shelter-manager job included making
“critical decisions in an inherently stressful environment,” making on-the-
spot decisions in emergency situations that could “arise at any time,” and
being “on call” to address a crisis as it arises. These findings are supported
by the testimony of La Casa employees.
Lopez contends that the court failed to consider whether Lopez could
have performed the shelter-manager job with the modifications that Campion
proposed. As Lopez’s cited authority reflects, the pertinent issue was
whether Lopez was unable to perform “ ‘essential duties even with reasonable
accommodations.’ ” (Sanchez, supra, 213 Cal.App.4th at p. 1341.) Here,
substantial evidence supports the trial court’s finding that the modification of
a flexible schedule, allowing Lopez to leave work to avoid stress or anxiety,
was not a reasonable accommodation. By the same token, this modification
would not have enabled Lopez to perform her essential duties; it would have
excused her from having to perform them, thus requiring some other
employee to do the shelter-manager job.
Lopez further contends that the trial court erred by finding that the
offer of a temporary assignment to a data-entry position was a reasonable
accommodation. Again her arguments are unavailing. She contends, for
example, that giving an employee a temporary job is not a reasonable
accommodation as a matter of law. (Citing Regs., § 11068(d)(3).) The data-
entry position was not a temporary job, but a position that was offered as a
28
temporary re-assignment until Lopez recovered from her unspecified
disability. Lopez also contends that, absent circumstances not applicable
here, an employer may not “transfer an employee affected by pregnancy over
her objections to another position.” (Regs., § 11039(a)(1)(G).) La Casa could
not force Lopez to accept a job transfer to a position she found objectionable,
but that does not mean a temporary assignment to the data-entry position
would not have been a reasonable accommodation of the disability that
prevented Lopez from performing the essential duties of a shelter manager.
In any event, the finding that the data-entry position was a reasonable
accommodation was not necessary to the court’s finding that Lopez failed to
prove her failure-to-accommodate claim. This claim failed because Lopez did
not carry her burden of proving that she could perform the essential job
functions of the shelter-manager position even with a reasonable
accommodation.
Finally, Lopez contends La Casa failed to prove its undue burden
defense. Section 12940(m) provides that the employer’s obligation reasonably
to accommodate the known disability of an employee “shall” not be construed
“to require an accommodation that is demonstrated by the employer . . . to
produce undue hardship.” But this is an affirmative defense that comes into
play only after a plaintiff has established that a specific requested
accommodation “[was] reasonable and thus required in the first place.”
(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227.) Here, as we
have discussed, Lopez failed to prove she was denied a reasonable
accommodation.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
29
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
30
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Rochelle C. East
Counsel: Lohr Ripamonti, Jason S. Lohr for Plaintiff and Appellant
Saber Law Group, Shirley C. Wang, Andrew Mailhot, and
Riley Harris (Balestreri) for Defendant and Respondent
Lopez v. La Casa De Las Madres (A163133)
31