The opinion
Filed 4/28/23; Certified for Publication 5/19/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DEANNA HODGES, B297864
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC691836
v.
CEDARS-SINAI MEDICAL
CENTER,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of Los
Angeles County. Michael L. Stern, Judge. Affirmed.
Kousha Berokim for Plaintiff and Appellant.
Venable, Daniel P. Hoffer, Ryan M. Andrews and
Rudolph G. Klapper for Defendant and Respondent.
___________________________
Plaintiff Deanna Hodges is a former employee of defendant
Cedars-Sinai Medical Center (Cedars). As a condition of her
continued employment, she was required to get a flu vaccine
unless she obtained a valid exemption—one establishing a
medically recognized contraindication to getting the flu vaccine.
Her doctor wrote a note recommending an exemption for various
reasons, including her history of cancer and general allergies.
None of the reasons was a medically recognized contraindication
to getting the flu vaccine. Cedars denied the exemption request.
Plaintiff still refused to get the vaccine. Cedars terminated her.
Plaintiff sued Cedars for disability discrimination and related
claims under the Fair Employment and Housing Act,
Government Code1 section 12900 et seq. (FEHA). The trial court
granted Cedars’s motion for summary judgment. We affirm.
BACKGROUND
Cedars operates a nonprofit academic medical center in Los
Angeles. Its total workforce exceeds 15,000 employees, including
approximately 2,100 doctors and 2,800 nurses. Together, these
employees provide medical care to thousands of patients per day
and perform related administrative and operational functions.
Plaintiff began working for Cedars in 2000. Throughout
her tenure, she worked in an administrative role with no patient
care responsibilities. Her office was in an administration
building Cedars owned about a mile from the main Cedars
medical campus, though she occasionally visited the main
medical campus in her capacity as an employee. A shuttle bus
ran continuously between the main medical campus and the
administration building, and many Cedars employees traveled
between the two sites on a daily basis.
1 Undesignated statutory references are to the Government
Code.
2
In 2007, plaintiff was diagnosed with stage III colorectal
cancer. She stopped working for a year and a half to undergo
treatment, which included chemotherapy. The treatment was
effective to rid her of cancer but left her with lingering side
effects. These included unspecified allergies, a weakened
immune system, and neuropathy—damage to the nerves
resulting in an ongoing “tingling sensation” in her fingers and
toes. None of these side effects limited her ability to perform her
job functions, and she successfully returned to work for Cedars in
2009.
As an administrative employee without direct patient
contact, plaintiff was under no obligation to get a flu vaccine
when she was hired or when she returned from cancer treatment
in 2009. This changed in 2017. That September, Cedars
announced a new policy requiring all employees, regardless of
their role, to be vaccinated by the beginning of flu season. This
was the latest expansion to Cedars’s longstanding efforts to limit
employee transmission of flu, which had become more urgent in
recent years following multiple patient deaths relating to flu.
The expanded 2017 policy aligned with the
recommendation of the United States Department of Health and
Human Services Centers for Disease Control and Prevention
(CDC) “that all U.S. health care workers get vaccinated annually
against influenza.” For these purposes, the CDC defined “health
care workers” to include “persons (e.g., clerical, dietary,
housekeeping, laundry, security, maintenance, administrative,
billing, and volunteers) not directly involved in patient care but
potentially exposed to infectious agents that can be transmitted
to and from health care workers and patients.”
Cedars’s 2017 flu vaccination policy made exceptions only
for employees establishing “a valid medical or religious
exemption.” Employees who declined the vaccine “based on
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medical contraindication, per CDC guidelines” were required to
submit an exemption request form completed by their physician
for review by Cedars’s internal “Exemption Review Panel.” The
primary role of this panel was to determine whether an employee
had a recognized contraindication to getting the flu vaccine. If an
employee did not have a recognized contraindication but a closely
related condition, like a moderate allergy to the flu vaccine, the
panel would determine whether it was possible to help the
employee get vaccinated in a way that accommodated the
employee’s concerns.
An unvaccinated employee whose exemption the panel
approved would be required to mask in all patient care areas. An
unvaccinated employee whose exemption the panel denied would
be subject to termination. The vaccination requirement, and
attendant enforcement mechanisms, were set to go into effect on
November 1, 2017.
Plaintiff did not want to get the flu vaccine. When the
requirement was announced, she had no diagnosis of any
contraindication to getting the flu vaccine. She made an
appointment with Dr. Henderson, her longtime physician, for
advice. Dr. Henderson is a gastroenterologist and internist who
practices at Cedars. He has no expertise in advising on whether
a person should or should not receive a flu vaccine for medical
reasons. Also, contrary to plaintiff’s repeated claims in her reply
brief, he is not an oncologist.
Plaintiff told Dr. Henderson she feared side effects from the
flu vaccine would be like those she experienced with
chemotherapy. She was particularly afraid of needles. She also
told Dr. Henderson her parents had experienced severe flu-like
symptoms after receiving the flu vaccine (about 20 years prior).
Based on his knowledge of her health history, her physical and
emotional condition, her role at Cedars, and his views on the
4
efficacy of the flu vaccine and suitability of alternative prevention
methods, Dr. Henderson advised plaintiff not to get vaccinated.
He agreed to help her apply for an exemption.
As required by the flu vaccine policy, Dr. Henderson
completed Cedars’s preprinted exemption form. The form
explains Cedars “permits medical exemption from influenza
vaccination ONLY for recognized medical
contraindications.” The form identifies as recognized
contraindications only (1) history of life threatening allergic
reaction to the flu vaccine or any of its components; and
(2) history of Guillain-Barré Syndrome within six weeks following
a previous dose of any flu vaccine. (For the 2017-2018 flu
vaccine, the CDC recognized only one contraindication: history of
severe allergic reaction to any component of the vaccine or after a
previous dose of any flu vaccine. It recognized a history of
Guillain-Barré Syndrome within six weeks following a previous
dose of any flu vaccine as merely a “precaution.”)
The form includes space for doctors to state “[o]ther”
reasons their patient should not receive the flu vaccine. It
cautions that such “[o]ther” reasons will be reviewed on a case-
by-case basis. Doctors resorting to the “[o]ther” category are
advised to “provide all supporting documentation.”
In completing plaintiff’s form, Dr. Henderson only checked
the box next to “[o]ther” and did not check either of the identified
“[r]ecognized contraindication[s].” To explain his “[o]ther”
reason, he wrote: “H[istory] of multiple allergies post treatment
for [colorectal cancer] [with] chemoradiation. Extreme [unwell]
state results from injections [and] immunizations. No direct
patient contact.” He signed the form October 16, 2017. He
attached no supporting documentation.
In his deposition, Dr. Henderson acknowledged that, when
he completed the form, he was unaware of plaintiff having any
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medically recognized contraindication to the flu vaccine—his
reasons for the exemption request had “nothing to do with
allergic reactions to the components of [the vaccine],” and he was
aware of no Guillain-Barré Syndrome history for plaintiff.
Dr. Henderson agreed that, in completing the form, he was “not
communicating that [plaintiff] had a recognized contraindication
to the flu vaccine . . . .”
Plaintiff submitted the signed exemption form to Cedars on
October 31, 2017, the deadline for doing so and the day before the
vaccination requirement was to take effect. Plaintiff had to make
an appointment to submit the form, and it was the earliest
appointment she could get when she first tried to schedule it on
or after October 25.
The same day she submitted her form, a Cedars employee
called plaintiff and told her the form was illegible, her request
was denied, and she would be suspended and terminated if she
did not agree to get the flu vaccine. Cedars placed plaintiff on
unpaid administrative leave the next day for failure to comply
with the vaccination policy.
In the ensuing days, plaintiff attempted to persuade Cedars
her exemption request was valid. On November 1, 2017, she
spoke with a different Cedars employee, Amanda Sibley, who
confirmed her request had been denied. Ms. Sibley is a nurse
practitioner who was responsible for implementing Cedars’s flu
vaccine policy. Plaintiff told Ms. Sibley that plaintiff is a cancer
survivor, suffers from various medical issues and multiple
allergies, and was instructed by her doctor not to take the flu
vaccine. Ms. Sibley asked plaintiff if she was allergic to egg,
historically a common flu vaccine component. Plaintiff declined
to specify any particular allergies in response. Instead, she asked
Ms. Sibley to contact Dr. Henderson for further explanation.
6
Plaintiff also called Dr. Henderson to ask him to contact
Ms. Sibley. In response, Dr. Henderson called Cedars, also on
November 1, and spoke with Ms. Sibley. Over the course of a
two-minute conversation, Dr. Henderson “did [his] best to
communicate” the basis for plaintiff’s exemption request, namely
“cancer history, neurological disorder, neuropathy, and the flu
vaccine’s extreme risk of triggering reactions, allergies, and/or
symptoms to [plaintiff].”
In the afternoon of November 1, Ms. Sibley related the
content of plaintiff’s exemption request to the members of the flu
vaccine exemption review panel by e-mail (subject to the
qualification that “2 words,” which Dr. Henderson had not been
able to recall when she spoke to him and later determined to be
just the word “immunizations,” were illegible). Approximately
45 minutes later, one of the members, Dr. Jonathan Grein,
responded: “A history of multiple allergies would not be an
appropriate reason to receive an exemption. I would deny this
request.” Dr. Grein explained in his declaration that he did not
consider any of the reasons stated on plaintiff’s exemption form
as valid bases for exemption from the flu vaccine, and that her
cancer history is actually a reason to get vaccinated. The
afternoon after Dr. Grein e-mailed his denial recommendation to
the panel, another member responded to the group: “I agree.” No
members dissented from Dr. Grein’s proposed approach.
On November 2, 2017, Ms. Sibley e-mailed a letter to
plaintiff informing her that the panel had denied her exemption
request because it did not meet the CDC criteria for medical
exemption. It offered her the opportunity to “change [her] mind
about receiving the flu vaccine” and reiterated that failure to
comply with the vaccination requirement would subject her to
termination.
7
On November 7, 2017, a Cedars human resources
representative, Angela Harvey, called plaintiff to encourage her
to reconsider getting the flu vaccine. Plaintiff offered to wear a
face mask, work from home, and avoid going anywhere near the
main medical campus. But she remained steadfast that she
would not be vaccinated without assurance from her doctor that
it was safe to do so.
Around the same time, before she was terminated, another
person encouraged plaintiff to reconsider her choice not to get
vaccinated: Dr. Henderson. According to his deposition
testimony, he thought a good “compromise” to the “pickle” of
plaintiff facing termination was for her “to receive the vaccine
and go forward, and that was [his] general understanding of what
[he] thought would be a good solution for her, but she was
severely adverse to the idea of getting the vaccination even in
suffering the consequences.” Plaintiff’s reasons, according to
Dr. Henderson, “all boiled down to the fact that she did not want
to get [vaccinated].”
Plaintiff was terminated effective November 9, 2017.
Plaintiff was the only Cedars employee terminated that flu
vaccine cycle for failure to comply with the vaccination policy. Of
the 24 employees who sought medical exemptions, 10 were
granted and 14, including plaintiff’s, were denied. All other
employees whose requests were denied agreed to receive the
vaccine.
After obtaining a right to sue letter from the California
Department of Fair Housing and Employment, plaintiff sued
Cedars in January 2018. Her complaint contained six causes of
action, each alleged as a violation of FEHA or the public policy it
manifests: (1) disability discrimination; (2) failure to engage in
the interactive process; (3) failure to accommodate a disability;
(4) retaliation; (5) failure to take reasonable steps to prevent
8
discrimination, harassment and retaliation; and (6) wrongful
termination.
Cedars moved for summary judgment on all causes of
action in December 2018. Plaintiff filed an opposition in
February 2019 and objected to certain of Cedars’s evidentiary
submissions. Cedars filed a reply and objected to certain of
plaintiff’s evidentiary submissions. The trial court held a hearing
and granted Cedars’s motion in March 2019. At the same time, it
ruled on Cedars’s evidentiary objections (overruled in part and
sustained in part) and decided the parties’ respective requests for
judicial notice (Cedars’s granted in toto; plaintiff’s granted in
limited part). We are directed to no resolution in the record of
plaintiff’s evidentiary objections.
Certain new evidence filed in support of plaintiff’s
opposition bears particular note because it plays prominently in
plaintiff’s appellate briefing. Plaintiff submitted a declaration
from Dr. Henderson in which he identified the factors he
considered in signing plaintiff’s vaccine exemption form. The
factors were: “a. [plaintiff’s] preexisting neurological condition
[¶] b. [plaintiff’s] parents’ severe adverse reaction to the flu
vaccine [¶] c. [plaintiff’s] neuropathy in her hands, legs, and
feet [¶] d. [plaintiff’s] cancer history [and consequent surgeries]
[¶] e. [plaintiff’s] emotional state [¶] f. [plaintiff] was not a
health care personnel [¶] g. [plaintiff’s] very limited contact
with health care personnel, which could have been even further
limited [¶] h. [a]vailability of other flu prevention methods to
[plaintiff], such as masking and social distancing [and] [¶] i. the
low efficacy of the flu vaccine.”
Dr. Henderson then concluded that “[t]hese factors, both on
their own, and specially combined together, presented extreme
risk of triggering reactions, allergies, and/or symptoms to
[plaintiff].” Cedars objected to this testimony, including for the
9
reason that Dr. Henderson was not an expert qualified to offer it.
Indeed, Dr. Henderson testified in deposition “I don’t have any
expertise to tell her whether she should receive [the flu vaccine]
or not receive it,” and “I don’t have an expert knowledge of that.”
The trial court nonetheless overruled Cedars’s objection and
admitted this testimony. Cedars does not challenge that ruling
on appeal.
Plaintiff also submitted evidence from both Dr. Henderson
and a retained expert, Dr. Dorratoltaj (who is not a medical
doctor), to the effect that Cedars’s recognized contraindications to
the flu vaccine “are not exhaustive.” The trial court sustained
Cedars’s objections to this evidence. Similarly, plaintiff
submitted evidence to the effect that “[an] individual’s physician
should determine if the individual should take the flu vaccine.”
Again, the trial court sustained Cedars’s objections to this
evidence. Plaintiff challenges neither ruling on appeal.
After the trial court granted Cedars’s motion for summary
judgment, plaintiff moved for reconsideration. The trial court
denied plaintiff’s motion. Plaintiff timely appealed the judgment.
DISCUSSION
1. Summary Judgment and Standard of Review
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).) The moving defendant bears the burden of persuasion
that no triable issues exist and that it is entitled to judgment as a
matter of law. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850.)
10
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.)
On appeal, “we take the facts from the record that was
before the trial court . . . . ‘ “We review the trial court’s decision
de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037, citation omitted (Yanowitz).)
“Furthermore, our review is governed by a fundamental
principle of appellate procedure, namely, that ‘ “[a] judgment or
order of the lower court is presumed correct,” ’ and thus, ‘ “error
must be affirmatively shown.” ’ [Citation.] Under this principle,
[the nonmoving] plaintiff bears the burden of establishing error
on appeal, even though [the moving] defendant[] had the burden
of proving [its] right to summary judgment before the trial court.
[Citation.] For this reason, our review is limited to contentions
adequately raised and supported in plaintiff’s brief.” (Murchison
v. County of Tehama (2021) 69 Cal.App.5th 867, 882
(Murchison).)
2. Analysis
a. Disability discrimination.
i. McDonnell Douglas burden-shifting
framework.
For purposes of evaluating FEHA discrimination claims,
California courts have adopted the burden-shifting framework
enunciated by the United States Supreme Court in McDonnell
11
Douglas Corp. v. Green (1973) 411 U.S. 792. (Zamora v. Security
Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 31 (Zamora).)
The framework was originally developed for use at trial. (Id. at
p. 32.) When applied at summary judgment, it works as follows:
“The ‘employer, as the moving party, has the initial burden to
present admissible evidence showing either that one or more
elements of plaintiff’s prima facie case is lacking or that the
adverse employment action was based upon legitimate,
nondiscriminatory factors.’ [Citation.] If the employer satisfies
its initial burden, it ‘ “ ‘will be entitled to summary [adjudication]
unless the plaintiff produces admissible evidence which raises a
triable issue of fact material to the defendant’s showing. In
short, by applying McDonnell Douglas’s shifting burdens of
production in the context of a motion for summary [adjudication],
“the judge [will] determine whether the litigants have created an
issue of fact to be decided by the jury.” ’ ” ’ ” (Ibid., italics
omitted.) Whether summary adjudication is appropriate “will
depend on a number of factors, including the strength of the
plaintiff’s prima facie case, the probative value of the proof that
the employer’s explanation is false, and any other evidence that
supports the employer’s case. [Citation.] However, many
employment cases present issues of intent and motive [which]
‘are rarely appropriate for disposition on summary judgment,
however liberalized [summary judgment standards may] be.’ ”
(Id. at pp. 32–33, italics omitted.)
As plaintiff observes, the court in Wallace v. County of
Stanislaus (2016) 245 Cal.App.4th 109 (Wallace) held the
McDonnell Douglas burden-shifting framework inapplicable to
disability discrimination cases in which the plaintiff introduces
direct evidence that the employer’s challenged conduct was
motivated by prohibited reasons. (Wallace, at p. 123.) We must
12
therefore address as a threshold question whether plaintiff
produced any such direct evidence.
“Direct evidence is evidence that proves a fact without
inference or presumption.” (Zamora, supra, 71 Cal.App.5th at
p. 35.) Here, the only evidence plaintiff points to as precluding
application of the McDonnell Douglas framework is that “after
[plaintiff] followed Dr. Henderson’s orders and did not receive the
flu shot, Cedars terminated [her] because she did not get the [flu]
vaccination.”
This is not direct evidence of a prohibited motive.
Terminating a person because she refused to get a flu shot in
violation of employer policy is not prohibited by FEHA. (See
generally § 12940.) Plaintiff says she was terminated because
she was “[un]ab[le] to get the vaccine.” But this was her claimed
motive in refusing to get the flu vaccine, not Cedars’s stated
reason for terminating her. There are no statements by Cedars
or documentary evidence that Cedars terminated plaintiff
because she was “unable” to get the vaccine, or due to any
claimed disability. To the contrary, the direct evidence, including
the written policy and exemption request form, shows Cedars had
a policy of terminating employees who failed to receive the flu
vaccine without a religious exemption or medically recognized
contraindication to receive the flu vaccine. Cedars terminated
plaintiff when she refused the flu vaccine because she failed to
provide evidence of a medically recognized contraindication. In
fact, the direct evidence is that Cedars viewed plaintiff as not
disabled in any way and fully capable of receiving the flu vaccine,
notwithstanding her diagnoses offered by Dr. Henderson in
support of her claimed exemption.
Thus, the McDonnell Douglas burden shifting framework,
as adapted for the summary adjudication context, applies here.
13
ii. Relevant FEHA anti-discrimination
provisions.
FEHA declares it unlawful for “an employer, because of . . .
physical disability, mental disability [or] medical condition . . . to
discharge the person from employment . . . or to discriminate
against the person in compensation or in terms, conditions, or
privileges of employment.” (§ 12940, subd. (a).)
FEHA defines “mental disability” and “physical disability”
separately. Both forms of disability require that a plaintiff has or
is perceived by an employer as having a condition that “limits a
major life activity.” (§ 12926, subds. (j), (m).) “Limits” means
making achievement of a major life activity difficult. (Id.,
subds. (j)(1)(B) & (m)(1)(B)(ii).) Major life activities include
“physical, mental, and social activities and working.” (Id.,
subds. (j)(1)(C) & (m)(1)(B)(iii).)
FEHA defines “medical condition” to include “[a]ny health
impairment related to or associated with a diagnosis of cancer or
a record or history of cancer.” (§ 12926, subd. (i)(1).) A “medical
condition” need not limit a major life activity. However, “medical
condition” is not defined to include an employer’s perception of a
condition the way that “physical disability” and “mental
disability” are. (See § 12926, subd. (j)(4), (5) [“mental disability”
includes being regarded as having a mental disability]; id.,
subd. (m)(4), (5) [“physical disability” includes being regarded as
having a physical disability]; see also § 12926.1, subd. (b) [“The
law of this state contains broad definitions of physical disability,
mental disability, and medical condition. It is the intent of the
Legislature that the definitions of physical disability and mental
disability be construed so that applicants and employees are
protected from discrimination due to an actual or perceived
physical or mental impairment that is disabling, potentially
14
disabling, or perceived as disabling or potentially disabling.”
(italics added)].)
iii. Medical condition or physical disability
discrimination?
Cedars raises a threshold dispute over whether plaintiff
raised a material triable issue as to medical condition
discrimination. Cedars contends she did not, because she alleged
and argued in the trial court only physical disability
discrimination.
Physical disability discrimination and medical condition
discrimination are separate causes of action in California. (Soria
v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570,
585–586 (Soria).) Plaintiff argues in her opening brief that her
cancer history and neuropathy amount to both a physical
disability and a medical condition. Cedars argues in its
responding brief that plaintiff cannot defeat summary judgment
by arguing she was subject to medical condition discrimination
because her complaint did not allege or put Cedars on notice of
such a claim. Plaintiff does not respond to this argument in her
reply.
We need not resolve whether plaintiff’s complaint alleged
medical condition discrimination because plaintiff does not
substantively develop such a claim in her appellate briefing.
Instead, she identifies the elements of her prima facie
discrimination claim as being those of a claim for physical
disability discrimination. Citing Arteaga v. Brink’s, Inc. (2008)
163 Cal.App.4th 327, 344–345 (Arteaga), a physical disability
case, plaintiff recites the elements of her prima facie claim as
follows: “that she[] (1) suffered from a disability, or was regarded
as suffering from a disability; (2) could perform the essential
duties of the job with or without reasonable accommodations[;]
and (3) was subjected to an adverse employment action because
15
of the disability or perceived disability.” Quoting Wallace, supra,
245 Cal.App.4th 109, another physical disability discrimination
case (see id. at pp. 124–125), plaintiff goes on to explain that a
plaintiff satisfies the third element—the employer’s intent to
discriminate—“by proving (1) the employer knew that plaintiff
had a physical condition that limited a major life activity, or
perceived him to have such a condition, and (2) the plaintiff’s
actual or perceived physical condition was a substantial
motivating reason for the defendant’s decision to subject the
plaintiff to an adverse employment action” (id. at p. 129, italics
added).
Based on plaintiff’s framing of the cause of action, we
consider only whether there is a triable issue of fact regarding
physical disability discrimination. We find, however, that even if
plaintiff had articulated her cause of action as one for medical
condition discrimination, her claim would fail for the same reason
her claim of physical disability discrimination would as explained
in part 2.a.v., post.
iv. There is no triable issue of fact as to
physical disability discrimination.
Plaintiff argues her cancer history and neuropathy amount
to a physical disability because they “make it impossible for her
to work as she cannot work as she cannot get vaccinated. Her
disabilities limited her ability to safely receive the vaccine.” To
be clear, plaintiff admits her cancer history and neuropathy in no
way otherwise limited her ability to work in 2017.
By this argument, plaintiff asserts she has a physical
disability within the meaning of section 12926,
subdivision (m)(1), which provides that a physiological condition
that affects one or more enumerated body systems and “limits a
major life activity” is a “physical disability” for purposes of
16
FEHA. (§ 12926, subd. (m)(1)(B)(i).) Working is expressly
defined as a “[m]ajor life activit[y].” (Id., subd. (m)(1)(B)(iii).)
In moving for summary judgment, Cedars introduced
evidence that plaintiff was not disabled and could not prove she
was disabled. It offered official guidance from the CDC and
testimony from Dr. Grein that there were only two medically
recognized contraindications for getting the flu vaccine. It offered
testimony from plaintiff and Dr. Henderson that she had never
been diagnosed with either contraindication. Dr. Henderson
further acknowledged that none of the conditions he listed on her
exemption form were recognized contraindications for getting the
flu vaccine. If this were not enough, Cedars also offered evidence
that, before she was terminated, Dr. Henderson advised plaintiff
to reconsider her decision not to get the vaccine and that, under
CDC guidelines, plaintiff’s cancer history was not a
contraindication but rather an indication—a condition making it
advisable—that a person get vaccinated.
The only evidence plaintiff now points to as establishing
her disability is Dr. Henderson’s statement in paragraph 10 of his
declaration that “[t]hese factors, both on their own, and specially
combined together, presented extreme risk of triggering
reactions, allergies, and/or symptoms to [plaintiff].” The
referenced “factors” are recited above and include plaintiff’s
cancer history and neuropathy, along with other factors
unrelated to plaintiff’s physical condition.
Cedars does not directly address this testimony in its
briefing. Instead, it dismisses Dr. Henderson’s testimony
wholesale as nonexpert opinion inadequate to establish facts
beyond the competence of a lay witness, i.e., whether plaintiff’s
conditions amount to contraindications to getting the flu vaccine.
Cedars offers a compelling basis for this position—
Dr. Henderson’s own testimony that he “do[es]n’t have any
17
expertise to tell her whether she should receive [the flu vaccine]
or not receive it”—but it omits a critical fact: Cedars made this
objection to the trial court, and it was overruled. Cedars could
have challenged this determination under Code of Civil
Procedure section 906, but it did not. Accordingly, its
characterization of Dr. Henderson’s testimony as “lay opinion”
after the trial court overruled its objection on expert competency
grounds is forfeited.
Nonetheless, Cedars is correct that Dr. Henderson’s
declaration fails to raise a material fact as to plaintiff’s claimed
disability. Specifically, the declaration fails to show the risks of
getting the vaccine, if manifested, would rise to the level of a
disability. Dr. Henderson fails to specify what the possible
“triggering reactions, allergies, and/or symptoms” might be and
fails to suggest how they would limit her ability to work, either in
general or in receiving the flu vaccine as a condition of her job.
As explained in Arteaga, supra, 163 Cal.App.4th 327, there must
be evidence that the symptoms are sufficiently severe to make a
major life activity, such as working, difficult. (Id. at pp. 347–
349.) This must also be true of symptoms that are merely
possible.
Although plaintiff does not call our attention to it, we note
that Dr. Henderson also states in his declaration “I was
concerned [plaintiff’s] preexisting neurological deficit [sic] and
considered that any further unnecessary procedure, severe
reaction, or allergy, caused by the flu vaccine, could cause further
neuropathy.” But again, Dr. Henderson does not express a view
of any risk of a “severe” reaction and does not describe how such
a reaction would manifest. He does not articulate what “further
neuropathy” resulting from any reaction would entail—whether
it would prolong her existing condition or make it worse, and to
what extent. And, most critically, he does not articulate how
18
neuropathy amounts to a disability. Indeed, there is no evidence
plaintiff’s existing neuropathy amounts to a disability. By her
own admission, it did not limit her ability to work except in her
claimed connection to getting the flu vaccine.
Plaintiff offered no evidence that the potential symptoms
Dr. Henderson described would amount to disabilities. For
example, one factor he considered in concluding plaintiff was at
risk for symptoms is her family history of reactions to flu
vaccines. These reactions were flu-like symptoms. Even though
they can be temporarily debilitating and cause a person to miss
work, flu symptoms are not a disability. (Cal. Code Regs., tit. 2,
§ 11065, subd. (d)(9)(B).) Similarly, allergies can range in
severity. Indeed, Dr. Henderson testified that some allergies to
medications can be so minor that they do not warrant noting in a
patient’s chart. Minor reactions to a vaccine cannot amount to a
disability. (See ibid. [excluding from definition of “disability”
those “conditions hav[ing] little or no residual effects”].)
The inference that Dr. Henderson’s declaration described a
risk of only mild, nonlimiting symptoms is corroborated by
another fact: he encouraged plaintiff to reconsider her resistance
to getting the vaccine before she was terminated. He thought
backing off her stance and complying with the policy would be a
“good solution for her.” This perspective, from her personal
physician charged with her care, is impossible to reconcile with
any meaningful risk of a disabling condition resulting to plaintiff
from getting the flu vaccine. It is also irreconcilable with
plaintiff’s claim in briefing that she had a disability because she
“cannot get vaccinated.” Clearly, plaintiff 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.
19
We note plaintiff’s repeated claims that contraindications
to getting the flu vaccine are not limited to those recognized by
the CDC, and that an individual’s physician should determine if
an individual should take the flu vaccine. Plaintiff’s record
citations for these assertions are to her statement of undisputed
facts. But tracing the evidentiary support for those facts to their
origins—testimony from Dr. Henderson, Dr. Dorratoltaj, and an
article Dr. Dorratoltaj cited—and a review of the trial court’s
evidentiary rulings reveals the trial court deemed these facts
inadmissible. Plaintiff does not challenge these rulings on
appeal. She therefore has no evidence that conditions other than
those Cedars identified are medically recognized
contraindications to getting the flu vaccine. (See Yanowitz,
supra, 36 Cal.4th at p. 1037 [summary judgment review does not
consider facts to which objections were made and sustained].)
Plaintiff also asserts in her briefing that, alternatively,
Cedars perceived her as having a disability. The only evidence
she cites for this claim is Dr. Henderson’s paragraph 10
testimony that she relies on for her claim of actual disability.
Dr. Henderson’s view that plaintiff faced special risks in getting
vaccinated does not conflict with Cedars’s evidence that it viewed
her as able to safely receive the flu vaccine for want of any
medically recognized contraindication.
Judgment was proper on plaintiff’s disability
discrimination cause of action because she failed to produce
evidence sufficient to create a fact issue concerning an essential
element of her prima facie case, i.e., her claimed disability or the
perception by Cedars of disability. We therefore need not address
the other elements of plaintiff’s prima facie case.
20
v. Legitimate nondiscriminatory reason; no
claim of pretext.
Even if plaintiff had made a prima facie case for
discrimination of any kind (e.g., physical disability, medical
condition, or otherwise), summary adjudication of her disability
discrimination cause of action would still have been proper
because Cedars presented a legitimate, nondiscriminatory reason
for her termination, and plaintiff fails to argue the reason was
pretextual.
Summary judgment on a FEHA discrimination claim is
appropriate where, regardless of any dispute concerning the
plaintiff’s prima facie case, the employer presents evidence of a
legitimate, nondiscriminatory motive for its action, and the
plaintiff fails to provide evidence rebutting the stated reason as
pretextual. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
357 (Guz).) Reasons are “legitimate” if they are “facially
unrelated to prohibited bias, and which, if true, would thus
preclude a finding of discrimination.” (Id. at p. 358, italics
omitted.) Issues that are “ ‘nondiscriminatory on their face’ and
‘honestly believed’ by [the] employer, will suffice even if ‘foolish or
trivial or baseless’ ”; “the ultimate issue is whether [the]
employer ‘honestly believed in the reasons it offers.’ ” (Ibid.)
Here, the evidence shows, and plaintiff concedes, that
“Cedars terminated [plaintiff] because she did not get the [flu]
vaccination.” Cedars presented evidence that its mandatory
vaccination policy was a product of concern about patient safety
and guidance from the CDC. In recent years, three patients had
died under circumstances where flu was at least a contributing
factor. CDC guidance in 2016 recommended that all employees
at healthcare facilities, regardless of role or involvement in
patient care, receive the flu vaccine.
21
Cedars’s policy for medical exemptions from the flu vaccine
further relied on CDC guidance. It permitted exemptions only for
reasons the CDC identified as a contraindication and a
precaution for getting the flu vaccine. It did not permit
exemptions for conditions that were not medically recognized
contraindications. The record shows Cedars strictly applied its
policy to its workforce of 15,000 people. In 2017, 24 employees
sought medical exemptions and Cedars granted only 10. Of the
14 it denied for want of a recognized medical contraindication,
only plaintiff persisted in her refusal to get the vaccine; thus,
only plaintiff was terminated as a result. In short, Cedars
terminated plaintiff not because she was or was regarded as
disabled, but because Cedars regarded her as not disabled. It
considered her capable of safely receiving the flu vaccine and
viewed her doctor’s stated reasons she should not—reasons that
he himself acknowledged were not medically recognized—as
invalid.
Plaintiff nonetheless argues that Cedars’s reason for
terminating her was “discriminatory on its face.” This is true,
she argues, because her reason for not getting the vaccine was
that her doctor told her not to. Plaintiff presents no authority for
her contention that Cedars was bound to accept Dr. Henderson’s
opinion that, despite presenting no medically recognized
contraindication to the flu vaccine, plaintiff should have been
exempted from the vaccine requirement.
An employer is not bound to accept an employee’s
subjective belief that she is disabled. (Arteaga, supra,
163 Cal.App.4th at p. 347.) Instead, the employer is entitled to
rely on other medical information. (Ibid.) Here, Cedars relied on
CDC guidance, applied by its own physicians, to conclude there
was no objective evidence of disability. Contrary to plaintiff’s
contention, this did not amount to Cedars “playing doctor” and
22
using its status as a healthcare enterprise to evade FEHA.
Cedars adopted a policy recommended by the federal agency
responsible for limiting the spread of disease in the United States
and used that agency’s unambiguous guidance in formulating
exceptions.2 Any employer adopting a similar policy would be
capable of ascertaining whether an exemption applicant checked
a box corresponding to a medically recognized contraindication.
Though plaintiff’s request was communicated through a
physician, it was nonetheless subjective. The information
Dr. Henderson provided Cedars evinced no medically recognized
reason not to get the flu vaccine; it merely listed reasons that he,
personally, felt plaintiff should not have to get the vaccine.
Indeed, his conclusion facially rested in part on his own views of
the wisdom of Cedars’s all-employee mandatory vaccination
policy. He stated that plaintiff’s lack of patient contact
warranted excusing her. Nothing in his reasons for seeking an
exemption for plaintiff showed her to be unable to get the flu
vaccine or that the consequences of her getting a flu vaccine
would amount to a disability. Dr. Henderson even viewed
plaintiff as sufficiently “able” to get the flu vaccine,
notwithstanding the diagnoses he communicated to Cedars, to
suggest she get it, after it became clear her exemption request
would be denied.
Finally, we acknowledge that plaintiff argues Cedars’s
policy was too expansive and unnecessary. In considering
whether implementing the policy on a workforce-wide basis was a
legitimate, nondiscriminatory reason for terminating plaintiff,
2 Plaintiff claims Cedars “arbitrarily recognized [the two
contraindications] as the only medical grounds for exemption.”
This is simply false.
23
the wisdom of the policy is not at issue. (Guz, supra, 24 Cal.4th
at p. 358.)
No reasonable factfinder could conclude from this record
that Cedars singled plaintiff out for termination because she had
a physical disability or because she had a medical condition. Its
facially nondiscriminatory policy, which plaintiff objectively
violated, was objective and objectively applied. Plaintiff does not
attempt to argue otherwise. Her failure to argue pretext in
Cedars’s legitimate, nondiscriminatory reason for terminating
her also requires us to affirm judgment on this cause of action.
b. Failure to engage in the interactive process.
Section 12940, subdivision (n), proscribes an employer’s
failure “to engage in a timely, good faith, interactive process with
the employee or applicant to determine effective reasonable
accommodations, if any, in response to a request for a reasonable
accommodation by an employee or applicant with a known
physical or mental disability or known medical condition.” (Ibid.)
Plaintiff argues that Cedars became subject to this duty
when “[she] and Dr. Henderson made Cedars aware of her
disability.” She asserts that Cedars wrongfully shirked the duty
because it was bound to accept Dr. Henderson’s view that
plaintiff should not get the flu vaccine. Again without citation to
authority, plaintiff asserts “[i]t is never up to the employer to
determine whether or not an employee suffers from a disability—
that determination rests exclusively within the purview of the
employee’s treating physician.”
Again, plaintiff is incorrect. Whether an employee is
disabled is ultimately a question for the court. It is true that a
request to accommodate a nonobvious disability supported by
reasonable medical documentation will ordinarily suffice to
trigger the interactive process duty. (Kao v. University of San
Francisco (2014) 229 Cal.App.4th 437, 450.) But, as already
24
noted, an employer is not bound to accept an employee’s
subjective belief that she is disabled (Arteaga, supra,
163 Cal.App.4th at p. 347), and neither the information
Dr. Henderson provided to Cedars nor the evidence plaintiff used
to oppose summary judgment created a bona fide question of
disability. Cedars never viewed plaintiff as disabled, and
plaintiff’s evidence does not establish a fact issue as to whether
she actually was.
This court has previously held that an interactive process
claim may lie where a plaintiff is not actually disabled, but the
employer regarded the employee as disabled. (See Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61–62 (Gelfo).)
This holding flowed directly from the conclusion that an employer
has a duty to reasonably accommodate an employee that it
merely perceives as disabled—a conclusion driven by FEHA’s
provisions defining “physical disability” to include an employer’s
regarding an employee as disabled. (Gelfo, at pp. 60, 61; see also
§§ 12926, subd. (m)(4) & (5), 12926.1, subd. (b).)
However, we are cited no authority where an employer was
bound to engage in an interactive process with an employee who
claimed disability but was neither disabled nor regarded by the
employer as being disabled. Certainly, an employer rejects an
employee’s claim of disability to eschew the interactive process at
its own peril. If the employee not perceived as disabled later
proves she actually was, a claim for failure to engage in the
interactive process will lie. But with no disability to
accommodate, and no perception of one, there is no duty to
accommodate and thus no accommodation to discuss. (See
§ 12940, subd. (m)(1) [duty to accommodate applies only to
“known physical or mental disability of an applicant or
employee”].) Plaintiff’s failure to present evidence sufficient to
25
create a triable issue as to the disability on which she predicates
it dooms this cause of action as well.
c. Failure to make reasonable accommodation.
Subject to limited exceptions, section 12940,
subdivision (m), proscribes an employer’s failure to “make a
reasonable accommodation for the known physical or mental
disability of an applicant or employee.” (Id., subd. (m)(1).) Citing
Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373,
plaintiff recites the elements of a claim for failure to reasonably
accommodate as (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. Judgment on
this claim was proper because plaintiff failed to identify a triable
material fact as to her disability.
In defending her claim, plaintiff mixes and matches
concepts of “medical condition” and “disability.” Again, we must
read plaintiff’s referenced medical condition only as one
amounting to a disability since section 12940, subdivision (m)(1),
makes no mention of medical conditions that do not limit a major
life activity—it applies only to “physical or mental disabilit[ies].”
(Ibid.)
Plaintiff argues that even if she was not actually disabled,
an employer’s perception of her as disabled can suffice to trigger
the reasonable accommodation requirement. While her legal
proposition is correct (see Gelfo, supra, 140 Cal.App.4th at
pp. 61–62), no facts support its application on this record. She
cites only Cedars’s view of plaintiff as “immunocompromised” and
its use of her “disability as a justification for her to receive the flu
vaccine.” First, Cedars viewed plaintiff as not disabled. There is
no indication that it considered her immunocompromised status
as limiting her ability to work or get vaccinated. Second, its
26
justification for requiring plaintiff to receive the flu vaccine was
that she was an employee. Its policy applied to all employees
except those with a qualifying religious or medical exemption.
Cedars viewed plaintiff as having no qualifying exemption. That
it considered her immunocompromised status an indication for
receiving the flu vaccine served only to reinforce its conclusion
that she was not disabled in the way she claimed—that her
health history made it impossible for her to get the flu vaccine.
d. FEHA retaliation.
Section 12940, subdivision (m), prohibits retaliation by an
employer for requesting an accommodation under that
subdivision—i.e., for a “known physical or mental disability.”
(Id., subd. (m)(2).) Plaintiff fails to acknowledge the prima facie
case she must make to establish a FEHA retaliation claim, i.e.,
“that she engaged in a protected activity, that she was thereafter
subjected to adverse employment action by her employer, and
there was a causal link between the two.” (Addy v. Bliss &
Glennon (1996) 44 Cal.App.4th 205, 217.) By failing to address
its elements and provide record citations to evidence
demonstrating a fact dispute material to each, plaintiff offers no
basis to disturb the trial court’s summary adjudication of this
cause of action. (See Murchison, supra, 60 Cal.App.5th at p. 882
[“our review is limited to contentions adequately raised and
supported in the [appellant’s] brief”].)
Even if this were not the case, plaintiff’s own admissions
negate the prospect of any causal link between her request for an
accommodation and her termination. Plaintiff acknowledges in
briefing that “Cedars terminated [her] because she did not get
the [flu] vaccination.” This makes any claim it terminated her for
requesting a reasonable accommodation untenable.
27
e. We affirm judgment on plaintiff’s remaining
“derivative” claims.
Plaintiff argues for reversal as to her remaining claims—
failure to prevent discrimination and retaliation and wrongful
termination in violation of public policy—solely on the basis that
they are derivative of her other claims she argues should not
have been summarily adjudicated. As we disagree with plaintiff
that summary adjudication of those other claims was improper,
she fails to articulate a valid basis for reversal of judgment on her
“derivative” claims.
DISPOSITION
The trial court’s judgment is affirmed. Defendant is to
recover its costs on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
VIRAMONTES, J.
28
Filed 5/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DEANNA HODGES, B297864
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC691836
v.
ORDER CERTIFYING
CEDARS-SINAI MEDICAL OPINION
CENTER, FOR PUBLICATION
Defendant and Respondent. [No change in judgment]
THE COURT:
The opinion in the above-entitled matter filed on April 28,
2023, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
There is no change in the judgment.
____________________________________________________________
STRATTON, P. J. GRIMES, J. VIRAMONTES, J.