Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, David L. Minning, Judge, Los Angeles County Super. Ct. No. BC332897
Keith A. Fink & Associates, Keith A. Fink, Sarah E. Hernandez, and Brendan Joy for Plaintiff and Appellant.
Carlton DiSante & Freudenberger, Leigh A. White for Defendants and Respondents.
MOSK, J.
INTRODUCTION
While working for defendant and respondent Target Corporation (Target), plaintiff and appellant Martha Hernandez (plaintiff) injured her knee. When her notices to Target of her injury and work restrictions did not result in the accommodations to which she believed she was entitled, plaintiff filed a workers’ compensation claim and was placed in a specially created, light duty assignment in which she worked sitting down. That assignment ended, however, when plaintiff’s workers’ compensation claim was denied by Target’s carrier. Target then informed plaintiff that there were no regular job positions available in which her work restrictions could be accommodated, and placed her on an unpaid medical leave of absence.
Plaintiff filed a charge with the Department of Fair Employment and Housing (DFEH), alleging disability discrimination, failure to accommodate, and retaliation under the Fair Employment and Housing Act (FEHA). After receiving a right to sue letter from the DFEH, plaintiff sued Target and two of her supervisors asserting various causes of action, including five under the FEHA. In response to defendants’ motion, the trial court summarily adjudicated each of plaintiff’s causes of action and entered judgment in favor of defendants.
The two supervisors were named only in plaintiff’s retaliation claim under the FEHA.
On appeal, plaintiff challenges the trial court’s adjudication of eight of her nine causes of action and her punitive damage claims, as well as certain evidentiary rulings made by the trial court in connection with defendants’ motion for summary judgment. We hold that the trial court did not err in making the evidentiary rulings challenged by plaintiff and that plaintiff failed to exhaust her administrative remedies in connection with certain of her claims under the FEHA. We further hold that the trial court properly summarily adjudicated each of plaintiff’s causes of action, and affirm the judgment.
Plaintiff does not challenge on appeal the adjudication against her of her first cause of action for age discrimination under the FEHA.
PROCEDURAL BACKGROUND
Plaintiff’s complaint asserted nine causes of action: (1) discrimination based on age in violation of the FEHA; (2) discrimination based on disability in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) failure to accommodate in violation of the FEHA; (5) failure to engage in a good faith interactive process in violation of the FEHA; (6) common law wrongful termination in violation of the public policies underlying the FEHA’s prohibition of age and disability discrimination; (7) wrongful termination in violation of the public policies underlying the prohibition against age discrimination, disability discrimination, and retaliation for filing a workers’ compensation claim; (8) violation of Labor Code sections 203 and 227.3; and (9) unfair competition in violation of Business and Professions Code section 17200 et seq. Individual defendants Dian Everage (Everage) and Mariana Garcia (Garcia) were named only in the third cause of action for retaliation in violation of the FEHA, along with their employer, Target.
Defendants moved for summary judgment or, in the alternative, summary adjudication of each cause of action and the punitive damage claims. Plaintiff opposed the motion and submitted a separate statement of additional facts in dispute, setting forth 120 additional facts supported by, inter alia, plaintiff’s declaration with exhibits. Each party also submitted written objections to certain of the other’s evidence, and filed various supplemental and reply submissions.
After hearing oral argument, the trial court issued written rulings on the parties’ objections, including a determination that plaintiff’s declaration should be stricken because there was no indication it had been translated for her prior to execution. The trial court then issued an order granting summary adjudication as to each cause of action, and entered judgment in favor of defendants based on that order.
As discussed below, we view the facts in a light most favorable to plaintiff as the losing party. (Weiner v. Southcoast Childcare Centers, Inc. (2004) 42 Cal.4th 1138, 1142.) Defendants’ version of the facts is set forth separately from plaintiff’s for purposes of analyzing whether the parties have met their respective burdens on a motion for summary judgment. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853.)
A. Defendants’ Facts
Plaintiff commenced employment at Target’s Valencia store in November 2000. She was hired as a “Sales Floor Team” member to work in a “Go-Backs” position. As part of her job duties in that position, plaintiff was required to place all abandoned and returned merchandise in its proper place throughout the store, remove all expired products throughout the store, pull merchandise from the backroom of the store, and stock merchandise in its appropriate place on the sales floor. Individuals working in a Go-Backs position were also required frequently to lift and carry items weighing as much as 25 to 50 pounds to place them on shelves on the sales floor.
Defendants submitted with their motion, as Exhibits 1 and 2, copies of job descriptions for sales floor team members.
In December 2003, plaintiff told the Valencia store manager, Everage, and her immediate supervisor, Garcia, that she had a knee problem and did not want to work in her Go-Backs position for more than four hours in any one shift because of the amount of walking required. In consultation with Garcia and plaintiff, Everage decided that once plaintiff had worked four hours in her Go-Backs position, she could finish the remainder of her shift in the stationary department, which role required less walking. Plaintiff was not required to work more than four hours in her Go-Backs position once she informed Everage of her knee problem in December 2003. Prior to December 2003, neither Everage nor Garcia was aware that plaintiff had a knee problem, and plaintiff did not give either of them any documentation concerning that problem or work restrictions prior to December 2003.
In February 2004, plaintiff told Everage for the first time that her knee problem was work-related. Plaintiff explained that she injured her knee during one of her shifts approximately two and one-half years earlier. Everage informed plaintiff that she should fill out a workers’ compensation claim form and obtain a “Workability Report” from Target’s physician specifying any work restrictions. Plaintiff told Everage that she had reported her knee injury to Target in 2001, but Everage was unable to locate documentation relating to such a report. According to Everage, during her review of plaintiff’s injury report, plaintiff gave inconsistent versions of how the injury occurred.
On or about February 25, 2004, Everage became aware that plaintiff had submitted a Workability Report (February Report) that provided plaintiff should minimize her “walking/lifting activities,” and she should not stand for more than one to three hours at a time. After reviewing the restrictions in the February Report, Everage created a temporary, light duty position for plaintiff working in the fitting rooms. Everage was able to create the light duty position because plaintiff’s hours were being charged to Target’s workers’ compensation budget, rather than to the store’s regular-hours budget.
Defendants submitted with their motion, as Exhibit 4, a copy of the February Report.
Defendants submitted with their motion, as Exhibit 5, copies of plaintiff’s work schedules showing she worked in the light duty position from February 22 through March 6, 2004.
On or about March 12, 2004, plaintiff submitted to Target a doctor’s note indicating that she could only work sitting. When Everage became aware that plaintiff could only work sitting, she created a light duty clerical position for plaintiff in which she could sit in the office and make photocopies. Plaintiff’s hours for this new light duty position were also charged to Target’s workers’ compensation budget.
On April 6, 2004, plaintiff submitted another Workability Report (April Report) to Target. The April Report provided that plaintiff could not perform any lifting or carrying, could not stand or walk, and could not push or pull any amount of weight. The April Report also provided that plaintiff could not bend, kneel, or squat.
Defendants submitted with their motion, as Exhibit 6, a copy of the April Report.
On April 26, 2004, Everage received a notice stating that plaintiff’s workers’ compensation claim had been denied because there was no “medical evidence of an industrial injury” and because the statute of limitations had run on her claim prior to filing. On May 11, 2004, Everage met with plaintiff and Garcia. Garcia translated for plaintiff the letter notification concerning the denial of plaintiff’s claim for workers’ compensation benefits. Everage and Garcia then told plaintiff that the temporary light duty clerical position was ending, and there were no other open positions in which her work restrictions could be accommodated. Accordingly, they advised plaintiff that she could not be scheduled for any more shifts due to her current restrictions, and to call them when her work restrictions changed so they could discuss with her whether there were any open job positions in which her restrictions could be accommodated. Plaintiff did not disagree with Everage’s assessment that no positions were available to accommodate plaintiff’s restrictions, nor did plaintiff suggest any other job positions or types of accommodations that would permit her to work within her restrictions. Neither Everage nor Garcia told plaintiff she was being terminated, and plaintiff did not indicate she was resigning. Instead, Target’s employee database showed that plaintiff was an active employee at the Valencia store.
Defendants submitted with their motion, as Exhibit 8, a copy of the letter notifying Target of the denial of plaintiff’s workers’ compensation claim.
According to plaintiff’s separate statement of additional facts in dispute, “English is not Plaintiff’s first language. She speaks and reads Spanish. She can only read limited English.”
Defendants submitted with their motion, as Exhibit 9, a copy of plaintiff’s employment status as reflected in Target’s database.
After her May 11, 2004, meeting with Everage and Garcia, plaintiff did not contact either of them to inform them that her restrictions had changed or to discuss any circumstances under which plaintiff might return to work. To their knowledge, plaintiff never requested payment of any vested vacation or sick leave. From Everage’s perspective, plaintiff had not been scheduled to work any shifts since May 11, 2004, because her work restrictions prevented her from working in any available position in the Valenica store.
Defendants submitted with their motion, as Exhibits 10 through 23, copies of job descriptions for all of the entry level positions at the Valencia store.
As noted, plaintiff submitted in her opposition papers and supplemental filings over a hundred “additional facts in dispute.” As explained below, however, many of those facts were either properly stricken by the trial court in response to defendants’ objections or are irrelevant to the limited claims raised by plaintiff’s administrative DFEH charge. This section sets forth the admissible evidence before the court relevant to plaintiff’s claims against Target. Certain other facts which may be relevant to specific issues raised by the parties on appeal will be set forth and discussed in sections below dealing with those issues.
In or about the fall or winter of 2002, plaintiff was working at Target’s Valencia store in the cosmetic department when she slipped, fell, and hurt her knee. Plaintiff reported the injury to Target and filled out paperwork.
In 2002 or 2003, plaintiff was transferred to a Go-Backs position that required her to walk the entire store. Several weeks after she began working in her Go-Backs position, plaintiff’s injured knee began to bother her. Plaintiff told several Target employees about her knee pain, including the “secretary,” but was told to continue working in her Go-Backs position. Approximately two weeks later, plaintiff again spoke to the secretary about her knee pain and inability to walk, but received no response. Plaintiff then had a third conversation with the secretary in which she again complained about her knee pain and explained that she could not walk.
In June 2003, plaintiff obtained a note from her doctor. Although plaintiff could not remember when she first gave the doctor’s note to someone at Target, she would have submitted it as soon as the doctor gave it to her. The note, the contents of which defendants did not dispute, provided in part: “[Plaintiff] was seen by me in medical walk in for mild-moderate osteoarthritis of her [right] knee and calf muscle spasm. It would be preferable that she work [shorter] shifts (4 hours) which require long term standing or walking.” Plaintiff gave this note to the secretary in human resources. Plaintiff spoke with Everage about her knee injury around the time that she began to give doctors’ notes to the secretary. Everage knew plaintiff had a knee injury, but told her to work in her Go-Backs position anyway.
Copies of the June 3, 2003, doctor’s note, as well as the subsequent letters and doctor’s notes plaintiff submitted to Target, were attached to plaintiff’s declaration in opposition to the summary judgment motion. As discussed below, however, the trial court properly ordered that plaintiff’s entire deposition be stricken. Therefore, the notes and letters attached to plaintiff’s declaration are not before us on appeal. Nevertheless, deposition testimony discussing the notes and letters was considered by the trial court and is before us on appeal.
On or about August 18, 2003, plaintiff gave a note to the secretary in human resources. Notwithstanding the August 18 note, plaintiff was required to work more than four hours each shift in her Go-Backs position, even though the managers knew she was not supposed to work more than four hours in that position.
Defendants emphasize that, during deposition, plaintiff admitted that from and after the time she submitted the August 18, 2003, note requesting an accommodation, she was never required to work more than four hours in her Go-Backs position.
On or about October 6, 2003, plaintiff provided another letter to human resources, the contents of which were not disputed by defendants, advising that she could not work more than six hours a shift. The letter recited that it was plaintiff’s third request for an accommodation, and plaintiff presented it to the secretary in human resources. Plaintiff could not recall if she gave the letter to Everage or Garcia. After she presented the October 6, 2003, letter to Target, plaintiff complained to Garcia about the pain in her knee and her inability to walk. Garcia told plaintiff she “had to work,” and advised plaintiff that if her knee hurt, she “should go home.”
The note was written for plaintiff by her daughter, Sarah Hernandez, one of the attorneys who represented her in the trial court, and who represents her on appeal.
Neither Everage nor Garcia was aware of plaintiff’s work limitations until December 2003. On or about December 16, 2003, plaintiff presented another doctor’s note to either Everage or Garcia and the secretary in human resources. The second page of the doctor’s note indicated that plaintiff would be unable to work from December 16 through December 29, 2003, and it is undisputed that plaintiff did not work during that time.
This fact, which comes from plaintiff’s statement of additional facts in dispute and was not disputed by defendants, appears to contradict earlier deposition testimony by plaintiff that suggests she told Everage and Garcia about her knee pain and work restrictions prior to December 2003.
After plaintiff returned to work in January 2004, she obtained a note from her doctor specifying “light work duty.” But when plaintiff returned to work, she was assigned a Go-Backs position.
As noted, plaintiff initially testified that she was not required to work more than four hours in her Go-Backs position after August 18, 2003.
On February 17, 2004, plaintiff filed a workers’ compensation claim with Target. Upon resubmission to Target of her physician’s notes, plaintiff received a copy of the February Report in which Target’s physician stated that plaintiff was to “minimize walking/lifting activities.” Subsequent to the filing of plaintiff’s workers’ compensation claim, Target placed plaintiff in a fitting room position and then a clerical position in human resources that allowed her to perform her job sitting down.
On or about April 6, 2004, plaintiff received the April Report that provided, inter alia, she could not stand at any time during her shift. Plaintiff continued to work for approximately one month while sitting.
Defendants submitted as an exhibit, and relied heavily upon, a copy of the April Report which, as noted above, set forth extensive work restrictions beyond the no standing limitation.
Plaintiff’s current condition prevents her from walking for prolonged periods of time. From June 2003 to March 2004, plaintiff was able to perform her job duties in her Go-Backs position, but only for a limited period of time. Although the April Report imposed restrictions on plaintiff that went beyond the no standing requirement, Everage and Garcia admitted that they were unaware of any restrictions other than that requirement. Plaintiff believed she could have performed the cashier’s job, even with the restrictions in the April Report, because in her experience that job would have only required her to “scan” merchandise and occasionally lift small items. Moreover, Garcia admitted that Target had a cashier who performed the essential job functions of that position in a wheelchair. Although Everage claimed that Target had no “pure sitting” jobs, she admitted that the job of operator at some stores consisted mainly of sitting, with some limited walking. On or about April 26, 2004, Everage and Garcia received notice of the denial of plaintiff’s workers’ compensation claim. That same day, plaintiff was informed that there would be no work for her due to her current work restrictions. Target did not offer plaintiff any other job position on May 11, 2004, nor did it allow plaintiff to continue working in the fitting room while sitting. Plaintiff has not been scheduled to work at Target since May 2004. No one from Target communicated with plaintiff about her work restrictions after May 11, 2004.
But Everage also testified that there were no open operator positions at the Valencia store in May 2004.
Despite this fact—which suggests that Everage and Garcia met with plaintiff on or about April 26, 2004—plaintiff seems to agree that the meeting took place May 11, 2004.
DISCUSSION
A. Standard of Review
“We review the grant of summary judgment de novo. (Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19 [17 Cal.Rptr.2d 356].) We make ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222 [38 Cal.Rptr.2d 35].) A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493].)” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1216-1217.)
“In performing our de novo review, we view the evidence in the light most favorable to plaintiffs as the losing parties. [Citation.] In this case, we liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
B. Evidentiary Issues
Plaintiff challenges on appeal certain of the trial court’s evidentiary rulings. Therefore, to reach the merits of her appeal from the summary judgment, we must first resolve plaintiff’s challenges to the evidentiary rulings so that we can analyze the issues she raises in light of the admissible evidence that was properly before the trial court on defendant’s motion. “On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposing papers except that to which evidentiary objections have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
1. Plaintiff’s Declaration
Defendants objected to plaintiff’s entire declaration under Evidence Code section 750, et seq., on the grounds that plaintiff admitted in her declaration that she read only “limited English,” but there was no evidence that the declaration had been translated for her prior to its execution under oath. The trial court sustained the objection and ordered the entire declaration stricken. Plaintiff contends that the trial court erred because an admission that she could only read limited English is not the equivalent of an admission that she could not read and understand her declaration without the aid of a translator.
On appeal, defendants cite specifically to Evidence Code section 753, subdivision (a), which provides: “When the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing.”
A trial court’s ruling on the admission or exclusion of evidence that entails a weighing of factors is reviewed on a motion for summary judgment under an abuse of discretion standard of review. (See Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) The court in DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679-680, recently said, “We review the trial court’s evidentiary rulings on summary judgment for abuse of discretion. [Citations.] As the parties challenging the court’s decision, it is plaintiffs’ burden to establish such an abuse, which we will find only if the trial court’s order exceeds the bounds of reason. [Citation.] ‘Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court.’ [Citation.] We will only interfere with the lower court’s judgment if appellant can show that under the evidence offered, ‘“no judge could reasonably have made the order that he did.”’ [Citation.] Plaintiffs’ showing will be ‘insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.’ [Citation.]”
In People v. Pantoja (2004) 122 Cal.App.4th 1, the trial court ruled that the declaration of a victim was admissible without a foundational showing that it had been translated into Spanish for the victim before she executed it. In reversing that ruling, the court in Pantoja observed that “[t]here is a complete absence of foundational information necessary to determine the reliability of the statement. . . . [¶] In addition to the absence of information concerning the time, place and circumstances under which the declaration was prepared, it is unclear who actually wrote the declaration. As the trial judge observed, [the declarant] spoke almost no English and therefore probably did not write the declaration herself. If [the declarant’s] statements were translated and transcribed by someone else, there is no indication in the record of who that was or of that person’s proficiency as a translator. Nor do we know whether the statement was read to [the declarant] in either language or whether she gave it any form of meaningful review. . . . [Therefore,] there is no assurance that these were [the declarant’s] words, rather than something included at the suggestion of another person present when the declaration was written.” (Id. at p. 12.)
Here, plaintiff admitted in her declaration, as well as in other papers filed in opposition, that she read only limited English. And her deposition testimony was taken with the aid of a Spanish interpreter. From that evidence, the trial court could have drawn a reasonable inference that plaintiff could not have read, understood, and verified the declaration under oath without the aid of a translator. Therefore, absent some evidence that a qualified translator was sworn to translate or any evidence that the document was translated for her, and she understood it at the time it was created, the trial court could have reasonably concluded that plaintiff failed to establish a proper foundation showing that the words in the declaration were hers, as opposed to that of the undisclosed drafter of the document.
See footnote 8, ante.
Given the state of the evidence, the trial court did not abuse its discretion or err under any other applicable standard of review in sustaining defendants’ objection and striking the declaration, including Exhibits A through L attached thereto. As a result, neither the testimony nor the exhibits in the declaration are part of the evidentiary record on appeal. Thus, we cannot consider plaintiff’s declaration and its exhibits in performing de novo review. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.)
2. Plaintiff’s Objections
The trial court also overruled certain of plaintiff’s objections to defendants’ evidence. On appeal, plaintiff challenges the admissibility of all of the declaration testimony of both Everage and Garcia that is purportedly contradicted by their sworn deposition testimony.
Relying on D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22, plaintiff made objections to certain paragraphs of Everage’s declaration on the grounds that the cited declaration testimony was contradicted by Everage’s deposition testimony. But none of plaintiff’s objections on this ground specified the deposition testimony that purportedly conflicted with the portions of Everage’s declaration to which plaintiff objected. Likewise, plaintiff’s objections on the same ground to Garcia’s declaration suffer from the same deficiency. Absent some identification of the specific deposition testimony that supported plaintiff’s various claims of testimonial conflict, the trial court had an insufficient factual basis upon which to evaluate each objection under D’Amico. Thus, it was not an abuse of discretion or error under any other applicable standard of review to overrule the objections based on the purported, but unspecified, conflicts between the respective declaration and deposition testimony of Everage and Garcia. The challenged testimony of both declarants is therefore properly before us on appeal. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 334.)
C. Exhaustion of Administrative Remedies
Defendants contend that plaintiff’s evidence of Target’s alleged failures to accommodate or engage in a good faith interactive process that occurred prior to May 11, 2004, are irrelevant to the claims that were properly before the trial court. They base their contention on the wording and content of plaintiff’s DFEH charge. According to defendants, that charge specified that on May 11, 2004, defendants discriminated against her when, inter alia, they “denied accommodation for her disability.” The charge, however, does not assert that defendants failed to accommodate plaintiff’s disability on any other prior date. Therefore, from defendants’ perspective, the only issue raised by the wording of plaintiff’s charge is whether Target failed to accommodate her, or engage in an interactive process with her, on or after May 11, 2004.
“Under California law ‘an employee must exhaust the . . . administrative remedy’ provided by the [FEHA], by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) (Gov. Code, § 12960; cf. id., §§ 12901, 12925, subd. (b)) and obtaining the DFEH's notice of right to sue (id., § 12965, subd. (b)), ‘before bringing suit on a cause of action under the act or seeking the relief provided therein . . . .’ (Rojo v. Kliger (1990) 52 Cal.3d 65, 88 [276 Cal.Rptr. 130, 801 P.2d 373] [dictum]; cf. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 213-214 [185 Cal.Rptr. 270, 649 P.2d 912]; Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1232 [13 Cal.Rptr.2d 170]; Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1121 [257 Cal.Rptr. 665]; Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890 [220 Cal.Rptr. 684].) To exhaust his or her administrative remedies as to a particular act made unlawful by the [FEHA], the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts. (Yurick v. Superior Court, supra, 209 Cal.App.3d at pp. 1121-1123.) We have recognized, in the context of the [FEHA], ‘[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,’ and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment. (Miller v. United Airlines, Inc., supra, 174 Cal.App.3d at p. 890.)” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724, italics added.)
“Whether the plaintiff has met [the exhaustion] requirement depends on an analysis of the ‘fit’ between the administrative charge and the lawsuit. (Ibid.) The test for that ‘fit’ is whether the alleged discriminatory acts in the lawsuit are ‘like or reasonably related to’ the allegations contained in the administrative charge. [Citation.]” (Yurik v. Superior Court (1989) 209 Cal.App.3d 1116, 1121-1122 (Yurik).)
In Yurik, supra, 209 Cal.App.3d 1116, the “plaintiff’s administrative claim alleged only gender discrimination based on unequal pay. It named [the defendant] as the sole discriminatory party. The administrative charge . . . did not allege either a pattern of discrimination or continuous retaliation. Moreover, plaintiff did not amend her administrative charge to include the allegation of age harassment or any other subsequent event.” (Id. at p. 1122.) Based on the allegations of the plaintiff’s administrative charge, the Yurick court concluded that the “plaintiff’s claim of gender discrimination alleged in her administrative charge did not encompass the cause of action for age harassment alleged against [the defendant] in her lawsuit. To permit her to pursue that cause of action would undermine vital policy interests embodied in [the] FEHA, i.e., the resolution of disputes and elimination of unlawful employment practices by conciliation. ([Gov. Code,] §§ 12930, 12935, 12963.7; Gelb and Frankfurt, California's Fair Employment and Housing Act: A Viable State Remedy for Employment Discrimination (1983) 34 Hastings L.J. 1055, 1061-1062.) Accordingly, [the defendant] is entitled to summary adjudication as to the cause of action for age harassment.” (Id. at p. 1123.)
In this case, as in Yurick, supra, 209 Cal.App.3d 1116, plaintiff’s DFEH charge makes no mention of any alleged failures to accommodate or engage in an “interactive process” prior to May 11, 2004. Similarly, the charge does not allege a pattern or practice of failing to accommodate or engage in an interactive process, nor does it allege a continuous course of conduct regarding such failures. Instead, a fair reading of plaintiff’s charge limits her discrimination claims under FEHA to the alleged failure to accommodate her physical limitations as of May 11, 2004, and the alleged retaliation thereafter relating to her physical disability. Accordingly, we agree that the evidence of defendants’ alleged failures to accommodate or engage in an interactive process prior to May 11, 2004, is irrelevant to the limited claims raised by plaintiff’s DFEH charge, which are the only claims as to which she exhausted her administrative remedies.
Plaintiff contends that, even if she failed to exhaust administrative remedies for claims based on alleged failures to accommodate and engage in an interactive process prior to May 11, 2004, those claims were nevertheless properly before the trial court under the continuing violation doctrine. According to plaintiff, because her evidence showed that defendant engaged in a pattern and practice or a continuous course of conduct towards her, claims based on such pattern and practice or course of conduct are not time-barred under the FEHA.
Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812 [an employer is liable for “actions that take place outside the limitations period if these actions are sufficiently linked to unlawful conduct within the limitations period”].
Plaintiff’s continuing violation argument fails. As stated above in Yurick, supra, 209 Cal.App.3d at page 1123, the failure of a plaintiff to exhaust administrative remedies as to any particular claim under the FEHA is jurisdictional. (See Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1080 [“we have described exhaustion of administrative remedies as ‘a jurisdictional prerequisite to resort to the courts’”].) Therefore, the issue is not whether claims based on conduct prior to May 11, 2004, are timely under the continuing violation doctrine. The issue is whether the trial court had jurisdiction over such claims in the first instance. As noted above, plaintiff’s DFEH charge failed to allege that defendant engaged in a pattern and practice or a continuous course of conduct; thus she did not exhaust administrative remedies as to such claims prior to filing her lawsuit. As a result, the trial court had no jurisdiction over such claims. The evidence submitted in support of such claims is therefore irrelevant to the issue of whether Target failed to accommodate plaintiff or failed to engage in an interactive process with her from and after May 11, 2004.
D. The First Cause of Action for Age Discrimination Under the FEHA
On appeal, plaintiff does not raise any challenge to the trial court’s summary adjudication of her first cause of action for age discrimination under the FEHA. She has therefore conceded the propriety of the trial court’s ruling as to that claim.
E. The Second Cause of Action for Disability Discrimination Under the FEHA
Plaintiff contends that her evidence showed that there were triable issues of fact concerning her claim for disability discrimination under the FEHA. As noted above, plaintiff’s DFEH charge against Target alleged that Target illegally discriminated against her on May 11, 2004, when it fired her because of her disability. By admitting that her current physical condition prevents her from walking for more than 15 minutes, plaintiff, in effect, concedes that she was not physically able to perform the essential duties of her Go-Backs position as of May 11, 2004. Nevertheless, she contends that there were triable issues of fact concerning whether she could have performed the essential duties of other positions such as cashier, fitting room attendant, operator, or service desk employee.
“[T]he FEHA, [Government Code] section 12940, subdivision (a), prohibits discrimination based on an employee’s physical disability. Under the FEHA, it is unlawful ‘[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition . . . of any person, . . . to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.’ (Ibid.) Although section 12940 proscribes discrimination on the basis of an employee’s disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: ‘This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, 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.’ ([Gov. Code,] § 12940, subd. (a)(1).)” (Green v. State of California (2007) 42 Cal.4th 254, 262.)
The April Report established multiple restrictions on plaintiff’s ability to perform the essential duties of any of the entry level positions in which she claims she was physically able to work. The Report prohibited plaintiff from performing any work that required walking, standing, lifting, carrying, pushing, pulling, kneeling, bending, or squatting. And Hernandez admitted in a deposition that she has no reason to believe that the limitations listed in the report were false or inaccurate. Plaintiff emphasizes that neither Everage nor Garcia ever saw the April Report, and both believed that plaintiff’s work restrictions involved only the no walking limitation. Plaintiff seems to be saying that if the people who dealt with her acted improperly without knowing of the incapacities, there should be liability. But plaintiff admitted that the April Report accurately stated the nature and extent of her physical limitations. She therefore conceded that she was unable to perform the essential job duties of the available positions. Under the circumstances, the decisions of Everage and Garcia turned out to be correct, even if they may not have known all the facts. (Cf. Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620. 632 [after-acquired information justified termination].) Based on plaintiff’s admission, she was incapacitated from working in available positions. Plaintiff has the burden to show she could perform a job.
As the job descriptions for Target’s available positions show, each available entry level job required some lifting, carrying, pushing, or pulling. Moreover, most if not all of them, required some standing or walking. In addition, Everage, the Valencia store manager, testified that there were no open positions available in which plaintiff’s work restrictions could be accommodated. That evidence raised a reasonable inference that plaintiff was not qualified for any of the alternative positions in which she claims she could have performed.
The parties appear to agree that Target’s obligation to make a reasonable accommodation was limited to what they refer to as “entry level” positions.
In response to defendants’ evidence concerning plaintiff’s work restrictions and job qualifications, plaintiff submitted her own deposition testimony that she could have performed the essential job duties of a cashier. But she admits in that testimony that a cashier was required to bag merchandise and hand it to the customer, duties that conflicted with the restriction on her lifting, carrying, pushing, or pulling anything. As such, plaintiff’s evidence was insufficient to raise a triable issue of fact concerning her ability to perform the essential duties of the job positions in which she claimed she was qualified to work.
F. Third Cause of Action for Retaliation Under the FEHA
Plaintiff contends that her evidence raised triable issues of fact concerning whether she suffered an adverse employment action in retaliation for complaining about employment practices forbidden under the FEHA. According to plaintiff, her submission of doctor’s notes, written requests for accommodation, and oral complaints to managers about her knee pain constituted protected activity for which she was terminated.
“Past California cases hold that in order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 814–815 [89 Cal.Rptr.2d 505]; Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476 [4 Cal.Rptr.2d 522] [adopting the title VII (Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.) burden-shifting analysis of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802–805 [36 L.Ed. 2d 668, 93 S.Ct. 1817]].) Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 68 [105 Cal.Rptr.2d 652].) If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘“‘drops out of the picture,’”’ and the burden shifts back to the employee to prove intentional retaliation. (Ibid.)” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
Plaintiff’s evidence does not show that she engaged in a protected activity under the FEHA. Government Code section 12940, subdivision (h) provides the definition of a protected activity: “It shall be an unlawful employment practice . . . [¶] . . . [¶] For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Italics added.)
At best, plaintiff’s evidence shows that she presented Target with doctors’ notes about her work restrictions and written requests for accommodations. None of these writings, however, rise to the level of “opposing” a prohibited practice under the FEHA, such as disability discrimination. Similarly, that plaintiff may have orally complained to managers about her knee pain does not translate into an opposition to illegal discrimination. A complaint to an employer about a physical limitation or that a physical limitation has not yet been accommodated is distinct from a complaint that the employer is discriminating based on that disability. Even when liberally construed in her favor, plaintiff’s evidence establishes only that she put Target on notice of her physical limitations and that Target may have responded slowly or inadequately to that notice. But that evidence does not raise a reasonable inference that plaintiff actively opposed what she believed to be disability discrimination. The trial court therefore properly adjudicated her retaliation claim under the FEHA.
G. The Fourth Cause of Action for Failure to Accommodate Under the FEHA
Plaintiff contends her evidence showed that she repeatedly requested, and Target repeatedly failed to provide, reasonable accommodations based on her disability. According to plaintiff, Target initially failed and refused to accommodate her injury after notice, and thereafter inadequately accommodated her.
As noted above in the discussion of exhaustion of administrative remedies, plaintiff’s administrative charge limited her failure to accommodate claim to Target’s alleged failure to accommodate her disability as it existed in May 2004. Therefore, all of the prior alleged failures to accommodate are irrelevant to the claim over which the trial court had jurisdiction. The trial court therefore properly granted summary adjudication as to any failure to accommodate claims based on such prior conduct.
The trial court also properly adjudicated plaintiff’s claim that Target failed to accommodate her disability as it existed in May 2004. “Under [the] FEHA, an employer’s failure to provide reasonable accommodation to enable an employee with a disability to perform the essential functions of his job constitutes an unlawful employment practice. (Gov. Code, § 12940, subd. (m); Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1383 [96 Cal.Rptr.2d 236] (Spitzer).) An employer’s failure to provide reasonable accommodation is a violation of the statute even in the absence of an adverse employment action. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 [102 Cal.Rptr.2d 55] (Jensen).) . . . [¶] If, as we assume here, an employee is disabled, ‘the employer cannot prevail on summary judgment on a claim of failure to reasonably accommodate unless it establishes through undisputed facts that (1) reasonable accommodation was offered and refused; (2) there simply was no vacant position within the employer’s organization for which the disabled employee was qualified and which the disabled employee was capable of performing with or without accommodation; or (3) the employer did everything in its power to find a reasonable accommodation, but the informal interactive process broke down because the employee failed to engage in discussions in good faith.’ (Jensen, supra, 85 Cal.App.4th at p. 263.)” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442-443, italics added.)
As discussed above, Target’s evidence raised a reasonable inference that, as of May 11, 2004, plaintiff’s work restrictions were so severe that she did not qualify for any open entry level positions at the Valencia store. Although plaintiff now claims that she was not as restricted as the April Report shows, and that she could have performed in other positions―such as cashier―her evidence on those points is insufficient to raise a triable issue concerning accommodation. Plaintiff admitted that all of the restrictions in the April Report were accurate and conceded that the cashier position required at least some carrying and lifting, activities that the April Report prohibited her from performing. (See Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 [party cannot create issue of fact by contradicting discovery admissions].) Under the circumstances, Target was not required to create a position to accommodate plaintiff (McCullah v. Southern Cal. Gas Co. (2000) 82 Cal.App.4th 495, 501 [“The employer is not required to create new positions or ‘bump’ other employees to accommodate”]); and it demonstrated that the plaintiff could not perform certain of the essential duties of the existing positions.
H. The Fifth Cause of Action for Failure to Engage in a Good Faith, Interactive Process Under the FEHA
Based largely on evidence of Target’s alleged failures to engage in an interactive process prior to May 11, 2004, plaintiff asserts that there is a triable issue of fact as to her fifth cause of action. Because she failed to exhaust administrative remedies as to claims based on conduct that occurred prior to May 11, 2004, however, plaintiff’s claim for failure to engage in an interactive process was limited to Target’s alleged failure to engage her following the May 11, 2004, meeting with Everage and Garcia.
“Under [the] FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242 [35 Cal.Rptr.3d 837] (Claudio) [employer may not fail to engage in a timely, good faith interactive process to determine effective reasonable accommodations].) ‘An employee may file a civil action based on the employer’s failure to engage in the interactive process.’ (Claudio, supra, [134 Cal.App.4th] at p. 243.) Failure to engage in this process is a separate FEHA violation independent from an employer’s failure to provide a reasonable disability accommodation, which is also a FEHA violation. (Gov. Code, § 12940, subd. (m); Gelfo v. Lockeed Martin Corp. (2006) 140 Cal.App.4th 34, 61 [43 Cal.Rptr.3d 874] (Gelfo); Claudio, supra, [134 Cal.App.4th] at p. 242 [employer may not fail to make a reasonable accommodation].) An employer may claim there were no available reasonable accommodations. But if it did not engage in a good faith interactive process, ‘it cannot be known whether an alternate job would have been found.’ (Claudio, supra, [134 Cal.App.4th] at p. 245.) The interactive process determines which accommodations are required. (Ibid.; Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263, fn. 7 [102 Cal.Rptr.2d 55] (Jensen).) Indeed, the interactive process could reveal solutions that neither party envisioned.” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.)
However, the “‘interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ [Citation.] An employee cannot demand clairvoyance of his employer. [Citation.] ‘ “ ‘[T]he employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.’ ”’ ” (King v. United Parcel Service, Inc., supra, 152 Cal.App.4th at p. 443.)
Everage and Garcia met with plaintiff on May 11, 2004, and explained that, from their perspective, there were no alternative job positions available to plaintiff that would accommodate her work restrictions. Plaintiff did not disagree with that assessment, nor did she request assignment to any specific position, such as cashier or operator. Because Target’s evidence supports the assessment by Everage and Garcia concerning the other available positions, and because plaintiff did not dispute that assessment or request any specific alternative assignment, there was insufficient evidence to raise a triable issue of fact concerning Target’s alleged failure to engage in an interactive process. Had plaintiff at the May 11 meeting, or any time thereafter, requested a specific assignment, it would have been incumbent upon Target to explore the potential for accommodation presented by the proposed position and to hear plaintiff’s reasoning as to why she believed she was qualified for it. But, absent some such good faith attempt by plaintiff to dispute Target’s assessment of the situation and present reasoned alternatives, Target cannot be faulted for not contacting plaintiff from and after May 11, 2004.
I. The Sixth and Seventh Causes of Action for Wrongful Termination
Plaintiff’s sixth cause of action alleged that she was wrongfully discharged in violation of the public policies underlying the FEHA’s prohibitions against disability and age discrimination. Her seventh cause of action alleged that she was discharged in violation of public policy because of her age, disability, and the filing of her workers’ compensation claim.
To the extent the sixth and seventh causes of action were based on disability discrimination, the trial court properly adjudicated those claims in favor of Target. As discussed above, plaintiff’s evidence failed to raise a triable issue of fact concerning whether she was able to perform the essential duties of the other available job positions. Having failed to raise a triable issue concerning her FEHA claim for disability discrimination, plaintiff cannot predicate a common law wrongful termination claim on the same alleged acts of discrimination. (See Reno v. Baird (1998) 18 Cal.4th 640, 663-664 [discrimination claim against supervisor that was barred under the FEHA could not be restated under the rubric of a common law wrongful termination claim in violation of public policy].)
To the extent the sixth and seventh causes of action were based on age discrimination, plaintiff has not presented on appeal facts or arguments supporting her assertion that she was discriminated against based on her age. We therefore do not reach the issue on appeal. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
Similarly, plaintiff presents no facts or argument on appeal supporting the allegation in the seventh cause of action that she was terminated in retaliation for the filing of her workers’ compensation claim. Thus, we do not reach that issue, as we are not required to “develop the appellants’ arguments for them. . . .” (Dills v. Redwood Assocociates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)
J. The Eighth Cause of Action for Violations of the Labor Code
Plaintiff’s eighth cause of action alleged that Target had failed to pay her for accrued sick and vacation time upon termination, thereby entitling her to penalties under Labor Code section 203. According to plaintiff, Target terminated her employment on May 11, 2004, and thereafter ignored her demand for payment of wages due.
Labor Code section 203 provides, in pertinent part: “If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.5, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days.” (Italics added.)
Under the plain language of the statute, a claim for penalties does not accrue unless the employee is discharged or resigns. Target presented evidence that plaintiff was placed on medical leave―not discharged―and that she did not resign. That evidence raised a reasonable inference that plaintiff’s claim for penalties under Labor Code section 203 had not accrued. In response, plaintiff submitted her deposition testimony that some time after May 11, 2004, she called “the assistant secretary” at Target and requested her vacation and sick pay. Plaintiff was told the amounts due would be mailed to her, but she never received payment. Plaintiff also admitted, however, that she was not told during that conversation that she was terminated and did not ask whether she had been terminated. She also admitted that she never resigned her position.
Plaintiff’s evidence may arguably raise a reasonable inference that she made a demand on Target for accrued vacation and sick pay, but that evidence does not address the issue of whether she was discharged within the meaning of Labor Code section 203. Rather, the only evidence on that crucial issue came from Target and, as noted, that evidence supported a reasonable inference that she was not discharged. Plaintiff admits that Target never told her she was terminated, and Target’s records reflect that plaintiff was considered an active employee who was presumably eligible for continued working assignments if and when her physical limitations allowed her to work. Plaintiff submitted no evidence that she had considered herself terminated or constructively terminated. Therefore, plaintiff’s evidence failed to raise a triable issue of fact concerning whether plaintiff was discharged within the meaning of Labor Code section 203.
Because plaintiff is still an employee, it is possible she might still request accommodation based on her present condition or an interactive process. Defendant has communicated with plaintiff offering such a process. We express no opinion on the respective rights of the parties at this time.
K. The Ninth Cause of Action for Unfair Competition
Plaintiff contends that because her evidence established triable issues concerning disability and age discrimination under the FEHA, her ninth cause of action for violation of Business and Professions Code section 17200 et seq., was improperly adjudicated against her. But, as discussed above, plaintiff’s evidence did not raise a triable issue of fact as to disability discrimination under the FEHA. Therefore, such evidence cannot support an unfair competition claim based on identical allegations of disability discrimination. Similarly, plaintiff’s failure on appeal to support her age discrimination claim under the FEHA with citations to evidence and authority prevents us from reaching her related contentions concerning age discrimination in the context of her unfair competition claim. Accordingly, the trial court properly adjudicated the ninth cause of action against plaintiff.
L. The Punitive Damages Claim
Based on our conclusion that the trial court properly adjudicated each of her causes of action, plaintiff’s contentions about her punitive damage claims are moot. Absent a determination that one or more of the defendants is potentially liable to plaintiff on a claim that would support the imposition of punitive damages—such as wrongful termination—plaintiff would not be entitled to punitive damages even if her damage claims had not been summarily adjudicated. (See United States Nat. Bank v. Bank of America (1963) 214 Cal.App.2d 74, 76 [because trial court ruled that cross-complaint was properly stricken as untimely, appeal of order sustaining demurrer to cross-complaint was moot].)
M. Individual Defendants
Because of our disposition of the case, we do not have to reach the arguments that the individual defendants were not legally liable.
DISPOSITION
The judgment of the trial court is affirmed. Defendants are awarded their costs on appeal.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.