Opinion
C082811
03-03-2020
W. REGINA WHITE, Plaintiff and Appellant, v. EMPLOYMENT DEVELOPMENT DEPARTMENT, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201300151251CUOEGDS)
W. Regina White is an employee with the California Employment Development Department (EDD) who, during several months in 2013, clashed with her then supervisor about her arriving late and leaving early. During this period, White contended that she required a flexible schedule because of her disability, and objected that her supervisor attempted to monitor her hours and asked that she try to show up to work on time. She eventually sought and obtained a transfer to work under a new supervisor, and later filed suit based on her prior supervisor's conduct, alleging that EDD discriminated against her based on her disability, failed to reasonably accommodate her disability, and failed to engage in an interactive process to determine whether she could be reasonably accommodated.
The trial court granted summary judgment in favor of EDD. We now affirm. We find, as the trial court held, that EDD met its initial burden to show that one or more elements of White's causes of action were lacking. We further find that White failed to rebut EDD's showing by raising a triable issue of material fact.
First, on her discrimination claim, White failed to provide sufficient evidence to show she suffered an "adverse employment action"—that is, a material and adverse effect on the terms, conditions, or privileges of her employment. Although we accept her evidence sufficed to show she suffered some adverse effect, it was insufficient to show this adverse effect was material.
Second, White presented insufficient evidence to show she was denied a reasonable accommodation. Her principal request to EDD was to be transferred to a new supervisor, but a request for a different supervisor is not a reasonable accommodation request. As the trial court found, employees cannot request a reasonable accommodation as a means of dictating with whom they will work.
Finally, White did not offer evidence sufficient to show that EDD failed to engage in an interactive process. The record shows that EDD promptly met with White each time she requested to be accommodated, discussed various accommodation options with her, granted all her requests for leave and a reduced work schedule, and ultimately offered to transfer her to a new position under a different supervisor. Although White may have preferred a transfer to a position other than the one she was offered, she was entitled only to a reasonable accommodation, not her preferred accommodation.
BACKGROUND
I
White began working with EDD in 2001. She started as an office technician and in 2008 was promoted to an associate government program analyst.
For much of her time with EDD, White has suffered from fibromyalgia—a disorder that White alleges causes her chronic pain and fatigue and at times debilitating migraines and pain. White informed EDD about her condition in 2003, and as an accommodation, she was afterward allowed to come in late and make up time, take breaks, and take time off.
In March of 2013, White began working under a new supervisor, Richard Cornelius. Shortly after, White submitted a medical note informing EDD that she would need to take intermittent leave about five days per month because of her condition.
Cornelius, at some point, began expressing concern about White's showing up to work late—both orally and in writing. In a May 13, 2013 e-mail, for example, Cornelius wrote White that he had noticed her arrive late on multiple occasions, and asked that she "[p]lease make the effort to arrive to work on time." To the extent she could not, he asked that she "[p]lease be sure to check in with me right away when you arrive to work late, to discuss how the time will be made up or if a leave slip will be used." He added that he was "more than willing to change and accommodate your work schedule in an attempt to reduce the number of days coming late to work." White responded that same day. She objected to his "tactic of tick emails," and suggested that he review her recently approved Family and Medical Leave Act paperwork to understand why she occasionally arrives late to work. The referenced paperwork noted that White would need to take intermittent leave about five days per month.
In a later June 19, 2013 e-mail, Cornelius again expressed concern over White's "recurring pattern" of tardiness. He noted that, per employee policy, employees who anticipate arriving late must contact their manager to let the manager know when they expect to arrive. Late-arriving employees, he further noted, must also let their manager know when they arrive to work. He added that, should White want, "you c[ould] request to change your work hours to accommodate you in your ability to be on time for work." "In addition," he wrote, he "w[ould] consider any options that you may propose to accommodate your needs."
White's tardiness became an ongoing source of tension between the two. So too did White's alleged failure to follow proper procedure when arriving to work late and when requesting leave. Cornelius, for example, faulted White for not following employee policy when she arrived late. He also later issued a formal memorandum stating that White had acted inappropriately in requesting leave on one occasion. In the memorandum, he noted that White had brought an EDD employee from another division to his office, and then in front of this other employee had asked him to allow her to take leave for the remainder of the day. Cornelius approved the request, but wrote that White should have asked him alone, as her immediate supervisor, for the requested leave, and that White acted inappropriately in involving EDD staff outside their division. He closed the memorandum by noting that it was "not intended to constitute Adverse Action," but then added that EDD "may take adverse action against you based on the incidents cited in this memorandum as well as any future incidents."
During the few months she worked under Cornelius, White complained several times about Cornelius to his superiors and requested to be accommodated by being allowed to telecommute or by being transferred to another supervisor. She also, during this time, submitted various medical notes that requested similar and other accommodations.
White first appears to have submitted a medical note during her time under Cornelius sometime after March 15, 2013. That note explained that White would require intermittent leave about five days per month for all of 2013.
White submitted another medical note shortly after on April 17, 2013. That note mentioned that White's condition was exacerbated by stress, and suggested that EDD change her work environment to one less stressful, perhaps by allowing for telecommuting. The following day, White explained in an e-mail that Cornelius was the cause of her increasing stress and declining health. In her words, "my concern was not my workload, the staff, or co-workers, etc. . . . but it is the impact that [Cornelius] as an individual, along with his [dishonesty], abuse in authority and obsessive [overbearing] ability to impact the flow of work that has taken [a toll] on my health, and my ability to effectively and productively get work done . . . ."
On April 18, 2013, Pamela Geitner, the EDD employee who oversaw White's division, met with White about her submitted medical note and mentioned potential accommodation options. These options included mediating with EDD personnel regarding workplace issues, organizing a process flow meeting to improve communications between White and Cornelius, and applying for a rotation in other available jobs at EDD. Geitner also discussed the option of telecommuting, but explained that White was not an appropriate candidate. She reasoned that employees who handle confidential personnel transactions, like White, must be present at the workplace.
On June 11, 2013, White submitted another doctor's note stating that she had occupational stress and would need time off each Tuesday and Thursday between June 18 and July 9 of 2013. EDD appears to have granted the request.
The following day, White wrote Geitner that she was continuing to have issues with Cornelius. Geitner forwarded White's e-mail to other EDD staff and wrote that she understood White to be "asking for a transfer to another manager." She then responded to White and explained that she had earlier asked for more information about her conflict with Cornelius, but White had yet to provide anything. She also reminded White "that the Employee Assistance Program is available to you, as well as State Disability Insurance." The record is unclear whether White ever responded to Geitner's request for additional information.
On the same day she wrote Geitner, White also wrote a similar e-mail to Cornelius's direct supervisor, Qun Xu, and requested to meet about her issues with Cornelius. Xu agreed to meet with her later that day. At the meeting, White requested to be removed from Cornelius's supervision, and Xu, in response, encouraged White to consider other comparable job positions and suggested several potential options. Xu also said she would send links concerning reasonable accommodations and equal employment opportunities. White expressed reservations about the positions Xu suggested, but said she would be interested in cross-training opportunities if available. Xu responded that no cross-training opportunities were currently available, but encouraged White to apply to training opportunities when they became available.
Following the meeting with Xu, on July 22, 2013, White's attorney wrote EDD that it had ignored White's reasonable accommodation request. In case EDD had "misunderstood the request," White's attorney wrote, she "renews her request for reasonable accommodation to be supervised by someone other than Mr. Cornelius."
The day after receiving the letter, EDD provided White with its reasonable accommodation forms and equal opportunity policies. Ten days later, EDD followed up with White's attorney and wrote that it had yet to receive completed reasonable accommodation forms from White. The record is unclear whether White ever submitted the referenced reasonable accommodation forms.
On July 29, 2013, White requested a month off starting that day and submitted a medical note to justify the absence. The note requested time off until August 31, 2013 "due to her medical condition."
Later that day, Cornelius told White—both over the phone and in an e-mail—that her medical note was insufficient and asked her to provide a new note the next day. He explained that the note was deficient because, among other things, it did not clarify whether the request concerned her prior condition or a new condition. After White e-mailed that her medical provider would need three to five days to provide the requested note, Cornelius wrote that she could have a week to provide the note. He also wrote that per Government Code section 19996.2, "after five days of unexcused absences (AWOL), the EDD may accept your automatic resignation." White afterward submitted the requested note, and EDD granted her requested leave.
On September 3, 2013, White submitted an additional medical note that requested time off until September 25, 2013. EDD also granted that request.
The day before White was scheduled to return to work, on September 24, 2013, EDD received another medical note from White requesting to work under a reduced work schedule from September 25, 2013 to October 11, 2013. EDD granted that request too.
Around this time, White learned about the possibility of a hardship transfer. EDD appears to allow employees to request hardship transfers pursuant to their collective bargaining contract. To that end, in mid-September, White requested a hardship transfer. Following White's request, a health services consultant called and e-mailed White that she would review her information to determine whether she met hardship transfer criteria. In support of her hardship transfer request, White later submitted two medical notes recommending that she "transfer to another geographic area."
The day after returning to work, on September 26, 2013, White requested that she be able to report to someone other than Cornelius while her hardship transfer was under review. EDD granted the request and told White she could temporarily report to a new supervisor, Matthew Duran.
Shortly after, in early October of 2013, EDD granted White's hardship request and offered her a transfer to EDD's Rancho Cordova office. The position included the same job classification, same branch and division, and same salary and benefits. White, however, rejected the proposal on October 10, 2013. According to White, she had concerns about the offered position and preferred to continue working under Duran.
A few days after rejecting the proposed transfer, White submitted another medical note and requested to work under a reduced work schedule until December 31, 2013. EDD granted the request.
Following White's rejection of the offered hardship transfer, EDD notified White that she would return to working under Cornelius. White, however, objected and asked to continue with Duran as her supervisor. EDD said she could not but agreed to again offer the hardship transfer that White had previously rejected. The transfer included the reduced work schedule that White had recently requested. White again rejected the proposed transfer.
In November of 2013, White provided EDD with two additional medical notes. The notes again explained that her symptoms were the result of a stressful work environment, and one of the notes stated that White "will continue to experience these fibromyalgia related symptoms as long as she continues to report to [Cornelius]." That same note also offered a solution: White "has requested reporting to someone other than her current supervisor and I support her request."
Shortly after, EDD sent White a letter discussing several options to address the concerns raised in the medical notes. EDD noted that White earlier objected to its proposed hardship transfer, that White was continuing to object to working with her supervisor, and that White had now provided a medical note requesting that she work with someone other than her supervisor. Based on this background, EDD offered to discuss the following alternatives to her working under Cornelius: White could take the transfer she had already rejected, resign, or retire.
On November 26, 2013, White accepted the offered transfer to EDD's Rancho Cordova office.
II
On September 9, 2013, several months before she transferred positions, White filed suit against EDD alleging four causes of action under the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).
FEHA, as relevant here, makes it unlawful "[f]or an employer, because of the . . . physical disability. . . of any person, . . . to discriminate against the person in compensation or in terms, conditions, or privileges of employment." (Gov. Code, § 12940, subd. (a).) It also requires employers to engage in a "timely, good faith, interactive process" to determine whether an employee suffering from a disability can be reasonably accommodated (id., subd. (n)), and then to reasonably accommodate the employee's disability unless doing so would impose an "undue hardship" (id., subd. (m)). Based on these requirements, White alleged the following causes of actions against EDD: (1) disability discrimination, (2) failure to reasonably accommodate her disability, (3) failure to engage in an interactive process to determine whether she could be reasonably accommodated, and (4) retaliation/interference for requesting a protected leave of absence.
Following discovery, EDD filed a motion for summary judgment. After briefing and a hearing, the court granted EDD's motion. The court found White's disability discrimination claim failed because White, although alleging that Cornelius was dismissive and chastised her, did not allege a material adverse employment action. Second, it found White's accommodation claim failed because White's requested accommodation—a change in supervisors—was not a reasonable accommodation request. Third, it rejected White's claim that EDD failed to engage in an interactive process because, it concluded, EDD in fact did engage in an interactive process as required. Finally, for reasons irrelevant here, the court rejected White's retaliation/interference claim.
White timely appealed, alleging the court erred in dismissing her discrimination, accommodation, and interactive-process claims.
STANDARD OF REVIEW
A trial court may grant a motion for summary judgment "if 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." (Code Civ. Proc. § 437c, subd. (c).) The parties' pleadings determine the scope of relevant legal issues on summary judgment, and the legal issues in turn determine the types of facts that are material to the case. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 172 & fn. 21.)
To meet its burden on summary judgment, a moving defendant must show either that one or more elements of the plaintiff's causes of action fail or that there is a complete defense to the plaintiff's case. (Code Civ. Proc. § 437c, subd. (p)(2).) If the defendant meets this initial burden, the burden then shifts to the plaintiff to show that a triable issue of one or more material facts exists. (Ibid.) A triable issue of a material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)
We review an order granting summary judgment de novo, and " 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' [Citation.]" (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286.)
DISCUSSION
I
We first consider White's discrimination claim. To establish a prima facie case of disability discrimination under FEHA, a plaintiff must show she (1) suffers from a disability of which her employer is aware, (2) is otherwise qualified for her job, and (3) experienced an "adverse employment action" because of her disability. (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.)
The trial court rejected White's discrimination claim after finding that EDD took no "adverse employment action" against White within the meaning of FEHA. We agree.
EDD contends that White's discrimination claim also fails for two additional reasons: (1) White did not suffer a disability recognized under FEHA, and (2) even if EDD did commit an adverse employment action, EDD's action was based on a legitimate, nondiscriminatory reason. Because we find White did not suffer an adverse employment action, however, we need not consider these other claims.
An "adverse employment action" under FEHA is an action that a reasonable employee would find adversely and materially affects the terms, conditions, or privileges of employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051, 1054-1055 (Yanowitz).) It includes conduct that is "reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion," but not actions that are "reasonably likely to do no more than anger or upset an employee." (Id. at pp. 1054-1055.) In evaluating whether an employer's conduct constitutes an adverse employment action, courts must "tak[e] into account the legitimate interests of both the employer and the employee." (Id. at p. 1054.) And when this evaluation concerns a series of actions that comprise a course of conduct, courts must consider whether these actions collectively establish an adverse employment action. (Id. at pp. 1055-1056.)
We find, as the trial court did, that EDD met its initial burden to show that White did not suffer from an adverse employment action. EDD acknowledged that White had some conflict with Cornelius concerning her attendance, but it offered evidence sufficient to show that his requests that she try to show up on time to work and follow EDD policy when requesting leave did not materially and adversely affect the terms, conditions, or privileges of her employment. EDD also supplied evidence showing it offered and granted several accommodations to White during her months under Cornelius, and ultimately granted her request to transfer to a new position. Although White felt slighted in not being transferred to her preferred position, EDD explained that it was not obligated to offer White her preferred accommodation; it needed only to offer a reasonable one, and it did so by offering White a position that included the same salary, benefits, and privileges. In providing this evidence, EDD satisfied its initial burden to show that an element of White's discrimination claim—the presence of an adverse employment action—was lacking.
In response to EDD's evidence, White contends EDD took four actions against her that collectively constituted an adverse employment action. We will examine each of White's four claims individually and then consider the collective harm. Although we need only consider the collective impact of EDD's alleged conduct (Yanowitz, supra, 36 Cal.4th at p. 1055), we nonetheless evaluate the claims individually to better explain what is collectively at stake.
A
1
First, White contends Cornelius "request[ed] that she violate her need for a flexible schedule" when he asked her to try to arrive at work on time. We disagree, even after making required inferences in White's favor.
We begin with Cornelius's e-mails, which White principally discusses. It is true Cornelius sought to reduce the number of days she showed up late and asked her to "[p]lease make the effort to arrive to work on time." But he did not demand she always be timely, as White suggests, and he in fact acknowledged she would need to be late at times. To the extent she needed to arrive late, he asked that she "[p]lease be sure to check in with me right away when you arrive to work late, to discuss how the time will be made up or if a leave slip will be used." He made a similar request in a later e-mail, commenting that the EDD personnel handbook required that she check in with him when arriving late. He then offered, in each of his e-mails, to modify her schedule to accommodate her needs and reduce the number of days she showed up late. Cornelius's e-mails, in short, express his interest in accommodating White's needs while also accommodating EDD's legitimate interest in tracking her time and limiting, not eliminating, the amount of days she showed up late. Although White tries to characterize his communications as repeated requests that she "violate her need for a flexible schedule," her characterization is not one reasonably supported by the evidence.
Cornelius's alleged oral comments, however, are less innocuous. White alleges that Cornelius told her, "you can probably hang it out, or do you have a leave slip," when she sought to leave early because of her disability, and in public asked, "what is exactly wrong with you?" We agree that comments of this nature are inconsiderate and inappropriate. But although unprofessional, these few comments cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment. (See Yanowitz, supra, 36 Cal.4th at p. 1054 ["a mere offensive utterance or even a pattern of social slights by either the employer or coemployees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment"]; Melin v. Verizon Business, Inc. (10th Cir. 2014) 595 Fed.Appx. 736, 737, 740 [considering comparable federal law and finding that a supervisor's disclosing an employee's medical condition and making crude comments about his disability to coworkers, although offensive and derogatory, was not an adverse employment action].)
2
Second, White takes issue with Cornelius reprimanding her after she brought an EDD employee from another division to his office, and then—in front of this other employee—asked him to allow her to take leave for the remainder of the day. In a memorandum, Cornelius wrote that White should have asked him alone for the requested leave per the EDD personnel handbook, and that she acted inappropriately in involving EDD staff outside their division. To correct this issue going forward, he asked that she review the EDD personnel handbook about the proper procedure for requesting leave. He then noted the memorandum was "not intended to constitute Adverse Action," but added that EDD "may take adverse action against you based on the incidents cited in this memorandum as well as any future incidents."
We acknowledge that some written reprimands may suffice to show an "adverse employment action." In Akers v. County of San Diego (2002) 95 Cal.App.4th 1441 (Akers), for example, the employer had issued a negative performance review and counseling memorandum that accused the employee, a prosecutor, of " 'incompetence,' " " 'dishonesty,' " and " 'insubordination.' " (Id. at p. 1456.) All parties there acknowledged that a prosecutor's "reputation for honesty is an essential quality of a successful prosecutor," and an accusation of " 'dishonesty' " against a prosecutor could be a "career ender." (Ibid.) On those facts, the court found, a reasonable trier of fact could find that the employee had become unpromotable and thus had suffered a material adverse effect in the terms and conditions of her employment. (Ibid.)
But the memorandum here is quite different from the performance review in Akers, and is instead comparable to written criticisms that courts have declined to find constitute adverse employment actions. Consider, for example, McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377 (McRae), a case involving alleged race discrimination and retaliation in violation of FEHA. The employee there accused her employer of race discrimination, and shortly after, the employer wrote a " 'Letter of Instruction' " alleging that the employee, a physician, had left her post in the emergency room without notice and without securing proper coverage. (Id. at pp. 382-383.) The author of the letter instructed the employee to correct her conduct going forward, and wrote that the letter, although not intended to be adverse in nature, would remain in the employee's personnel file for at least a year. (Id. at p. 383.) The employee afterward filed suit alleging race discrimination and retaliation under FEHA, and a jury agreed. (Id. at p. 318.) But on appeal the court reversed, finding, among other things, that the letter did not qualify as an adverse employment action. No evidence, the court found, showed the employee would likely suffer a loss of employment benefits or any other material adverse change as a result of the letter. (Id. at p. 392.) The court thus held the letter did not "rise to the level of an adverse employment action." (Ibid.)
White's claims here, based on a comparable written reprimand, suffer from a similar lack of evidence. No offered evidence suffices to show that the memorandum would likely cause White to suffer a material change to the terms, conditions, or privileges of her employment. (See McRae, supra, 142 Cal.App.4th at p. 392; Akers, supra, 95 Cal.App.4th at p. 1457 [written criticisms alone are inadequate to show an adverse employment action, but they are sufficient if "wrongfully use[d] . . . to substantially and materially change the terms and conditions of employment"]; Weeks v. Union Pacific Railroad Co. (E.D.Cal. 2015) 137 F.Supp.3d 1204, 1220-1221, 1226 [notice of discipline, which claimed the employee had violated a policy and was placed in his record, was not found to be an adverse employment action under FEHA as it was unaccompanied by any actual adverse effect on compensation, terms, conditions, or privileges of employment].)
3
Third, White asserts she suffered an adverse employment action when Cornelius threatened to have her terminated if she did not promptly substantiate the basis for her request for a one-month absence. This relates to White's request on July 29, 2013, to take leave for a month under the Family and Medical Leave Act of 1993 (FMLA)—a federal law that provides job security to employees who must be absent from work because of, among other things, their own illnesses. (29 U.S.C. § 2601 et seq.)
The morning of July 29, 2013, White e-mailed Cornelius that she would be taking a month off starting that day, and in support, provided a medical note saying she would be off until August 31, 2013 "due to her medical condition." Because her request concerned the same condition for which EDD had previously allowed White intermittent leave under the FMLA, White was required, under the FMLA, to "specifically reference either the qualifying reason for leave or the need for FMLA leave." (29 C.F.R. § 825.303(b) (2020).) But she did not do so. Nor did her note include information that EDD's personnel handbook required, as it lacked, for example, a description of the general nature of her illness. (See 29 C.F.R. § 825.303(c) (2020) ["an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances"].)
Cornelius responded the same day of White's request, explaining that the medical note included insufficient detail by failing, among other things, to clarify whether the requested leave was "attributable to the existing FMLA request" or a new condition. He then asked that White provide, by the end of the next day, a more detailed doctor's note to support the absence. After White said her medical provider would need three to five days to provide the requested note, Cornelius allowed White a week to obtain the note. He advised, however, that if she were absent for five days without the required note, "EDD may accept your automatic resignation in accordance with Government Code section 19996.2." White later provided the requested note and EDD granted her leave request.
Although her leave request was ultimately granted, White contends Cornelius imposed "outrageous deadlines" and wrongly threatened termination. But the record shows that Cornelius promptly adjusted the deadline for providing the medical note when White requested more time, and correctly cited the law on the consequences of being away without leave. As Cornelius wrote, Government Code section 19996.2 provides that five consecutive absences without leave "is an automatic resignation from state service"—a law that many state employees who are away without leave would probably prefer to know. We recognize that Cornelius's referencing of this law may have caused White stress, but White has not raised a rational inference that the comment had a detrimental and material effect on her employment.
4
Finally, White contends that EDD materially harmed her by offering a hardship transfer that was not to her liking. White, however, never clearly explains how an employer can commit an adverse employment action simply by offering a position that the employee is free to reject. It is true that an involuntary disadvantageous transfer can be an adverse employment action. (See McRae, supra, 142 Cal.App.4th at p. 393.) But a voluntary transfer is different, as the employee has elected to accept the transfer along with its associated advantages and disadvantages.
In any event, setting aside that White opted to accept the transfer, she has not shown that the transfer materially and adversely effected the terms, privileges, and conditions of her employment. White first objects that she "felt" the new position lacked upward mobility and was a stressful environment. But she offers only this conclusion without explanation. To survive summary judgment, she needed to present "specific facts" showing a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(1).) That she "felt" the transfer was a step back, without any substantiation, was not enough to satisfy this requirement. White next objects to her start time moving from 7:00 a.m. to 8:00 a.m., which she alleges resulted in her facing more traffic. But although this may certainly be an inconvenience, we do not find it to be a material change to the terms and conditions of her employment, particularly when the record sheds no light on how White's commute time has in fact changed. Finally, White objects that the offered position was not her preferred position. EDD, however, was not obligated to offer White the "best" accommodation or her preferred accommodation; it only needed to provide a reasonable one. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 228 (Hanson).)
B
We now consider the collective harm of these several actions. Collectively, White has offered evidence showing (1) Cornelius asked her to try to show up to work on time, but when she could not, asked her to check in with him as required by EDD policy; (2) Cornelius encouraged White to stay the full work day when she sought to leave early because of her disability, and inquired about her condition in front of her coworkers; (3) Cornelius stated, in a reprimanding memorandum, that White should not involve employees outside their division when requesting leave; (4) when White attempted to justify a month's leave with a deficient explanation, Cornelius asked her to promptly provide additional information and warned, as the law provides, that employees away without leave for five consecutive days may be terminated; and (5) EDD offered to transfer White to a position that, though comparable to the one she currently had, was not her preferred option.
We accept that this evidence shows White suffered some adverse effect as a result of EDD's conduct. But although EDD may certainly have caused White stress and embarrassment, as she contends, we cannot say that EDD's conduct would have caused a reasonable employee stress and embarrassment sufficiently severe to alter the terms, conditions, or privileges of employment. Nor can we say that EDD's actions otherwise caused White to suffer a material adverse effect to the terms, conditions, or privileges of her employment.
In support of her argument, White cites Yanowitz, supra, 36 Cal.4th 1028, but the case is readily distinguishable. Yanowitz considered whether an employee had presented sufficient evidence at the summary judgment stage to make a prima facie showing of an adverse employment action. The employee there, a sales manager, alleged her employer retaliated against her after she refused to follow her supervisor's order to fire an employee who, in her supervisor's view, was not sufficiently attractive. (Id. at p. 1035.) To support her claim, she offered evidence showing she had been a highly rated and honored employee for 18 years, but then suffered a series of damaging abuses from her employer after she refused to fire the employee. (Id. at p. 1060.) Following this refusal, her supervisors "began to actively solicit negative information about her" and "refused to review her response to these charges." (Ibid.) They then employed this negative information "to criticize [her] both in the presence of her subordinates and in written memoranda," "to justify new, restrictive directives regarding her future performance," and "to impair her effectiveness with her staff." (Ibid.) These actions, the Supreme Court found, "constituted more than mere inconveniences or insignificant changes in job responsibilities," they "placed her career in jeopardy." (Ibid.) The Supreme Court thus held that the employee had offered sufficient evidence at the summary judgment stage "to satisfy the adverse action element of her prima facie case." (Id. at p. 1061.)
But White never made a comparable showing. We accept that she was stressed and that EDD contributed to her stress, as we must at this stage. But to overcome EDD's initial showing, White needed to present evidence raising a rational inference that EDD's actions would have caused a reasonable employee to suffer a material and adverse effect in the terms, conditions, or privileges of employment. She failed to do so.
II
We next address White's accommodation claim. The elements of a claim based on a failure to accommodate under FEHA are that (1) the plaintiff suffers from a disability, (2) she is otherwise qualified for her job, and (3) her employer failed to reasonably accommodate her disability. (Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969.)
The trial court rejected White's accommodation claim because it found she was, at bottom, requesting to change supervisors, and that is not a reasonable accommodation request. Although the court's reasoning was perhaps oversimplified, we find its ultimate conclusion was sound.
A "reasonable accommodation" is a modification or adjustment of the work environment that allows the employee to perform the essential function of her job. (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) An employee is not entitled to the "best" accommodation. (Hanson, supra, 74 Cal.App.4th at p. 228.) She is entitled only to a reasonable one, and when multiple options are reasonable, the employer may choose which of these options to adopt. (Ibid.; Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1194.)
In the proceedings below, the undisputed facts showed that EDD had granted White a variety of reasonable accommodations. EDD's offered evidence showed it allowed her to take off each Tuesday and Thursday between June 18, 2013 and July 9, 2013; granted her a leave of absence from July 29, 2013 to August 31, 2013; granted her another leave of absence from September 2, 2013 to September 25, 2013; allowed her to work a reduced schedule of 20 hours a week from September 25, 2013 to December 31, 2013; temporarily allowed her to work under a new supervisor; and finally, offered her a hardship transfer to a comparable position under a new supervisor. Although White further requested the ability to telecommute, EDD explained that her position—which involved the handling of confidential personnel records—was not one amenable to telecommuting. This showing was sufficient to shift the burden onto White to raise a rational inference that she was in fact denied a reasonable accommodation.
In response to EDD's evidence, White contends the record shows these accommodations were inadequate for several reasons.
First, White argues that EDD denied her a reasonable accommodation by granting her requests for leave and a reduced work schedule in July and September of 2013. White suggests that EDD forced her to make these requests because EDD earlier denied her a flexible schedule. But we do not find that EDD denied her a reasonable accommodation by granting her own requested accommodations.
Second, White makes the related argument that EDD denied her a reasonable accommodation by denying her a flexible work schedule. But White's argument finds insufficient support in the record. Cornelius, it is true, sought to reduce the number of days she showed up late and asked her to check in with him when she arrived late to allow him to document her time. But it is too much to say that in doing so, he denied her a flexible work schedule. To the contrary, as White's own evidence shows, Cornelius specifically acknowledged that White would be late at times, and several times offered to modify her schedule to accommodate her needs.
Third, White contends EDD denied her a reasonable accommodation by not allowing her to telecommute. But White acknowledges that her position did not allow for telecommuting under EDD policy, and never attempts to rebut EDD's offered evidence that her job duties were ill suited for telecommuting. EDD explained that White's position involved handling confidential records about EDD personnel, and it would not be reasonable for her to shuttle this confidential information to and from the workplace and her home. Rather than address this evidence, however, White claims that EDD should have allowed telecommuting anyway because it would not have caused EDD to suffer any undue hardship. But although an employer need not provide a reasonable accommodation when doing so would impose an "undue hardship" (Gov. Code, § 12940, subd. (m)), it can always deny unreasonable accommodation requests. White also claims the trial court should have left it to a jury to determine whether telecommuting was a reasonable option under the reasoning of Norris v. Allied-Sysco Food Services, Inc. (N.D. Cal. 1996) 948 F.Supp. 1418, affd. sub nom. Norris v. Sysco Corp. (9th Cir. 1999) 191 F.3d 1043. But that case is easily distinguishable. The employer there simply ignored the employee's request to telecommute (id. at p. 1425), and the evidence presented showed the employee reasonably could have performed certain administrative duties at home (id. at pp. 1431-1432). EDD, in contrast, promptly responded to White's inquiries about telecommuting, and explained her handling of confidential personnel records made the request impractical. White never effectively countered this factual showing to explain why telecommuting would nonetheless be reasonable. She instead offers only a single sentence that she was, at some point in her career, allowed to work from home "at times." But that showing, without more, did not overcome EDD's offered evidence and raise a triable issue of material fact.
Fourth, White asserts that EDD could have accommodated her by allowing her to work under a different supervisor. Employees, however, cannot use FEHA's mandate that employers provide "reasonable accommodations" to dictate with whom they will work. As the trial court found, an employee's request for a different supervisor is not a reasonable accommodation request. (See Roberts v. Permanente Medical Group, Inc. (9th Cir. 2017) 690 Fed.Appx. 535, 536 [a request for a new supervisor as a reasonable accommodation under FEHA "is per se unreasonable under Equal Employment Opportunity Commission ('EEOC') guidelines"]; Jackson v. Kaplan Higher Educ., LLC (E.D.Cal. 2015) 106 F.Supp.3d 1118, 1128 [rejecting employee's request under FEHA to be placed with a different supervisor; "[i]t has been the opinion of this and other courts in this circuit that placement with a different supervisor, or its equivalent, is presumed to be an unreasonable job accommodation request"]; cf. Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78, 85 ["an employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA"].) Federal courts considering similar claims under the Americans with Disabilities Act (ADA) have found likewise. (See, e.g., Wernick v. Federal Reserve Bank of New York (2d Cir. 1996) 91 F.3d 379, 384 [failure to assign employee to work under different supervisor did not violate reasonable accommodation requirement of the ADA; "nothing in the law leads us to conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within an organizational hierarchy"]; Gaul v. Lucent Technologies, Inc. (3d Cir. 1998) 134 F.3d 576, 581 [same]; Weiler v. Household Finance Corp. (7th Cir. 1996) 101 F.3d 519, 526 [same].)
Although White was nonetheless eventually offered a position with a new supervisor, she finds error there too. According to White, the offered position was unreasonable because she preferred other options that were not offered. But an accommodation is not unreasonable simply because an employee prefers another one. Rather, when multiple reasonable accommodations are available, the employer has the " ' "ultimate discretion" ' " to choose which of these options to adopt. (Hanson, supra, 74 Cal.App.4th at p. 228; Thomsen v. Georgia-Pacific Corrugated, LLC (E.D.Cal. 2016) 190 F.Supp.3d 959, 966 ["FEHA did not obligate defendant to offer plaintiff the position he found more preferable"].) White's one cited case, Swanson v. Morongo Unified School Dist., supra, 232 Cal.App.4th 954, does not hold otherwise. The employer there offered to transfer the employee to only one of two positions, both of which she found to be unreasonable accommodations, even though another position she believed would be reasonable was available. (Id. at p. 971.) The employer ultimately moved for summary judgment against the employee's claims, but produced no evidence to show its offered positions were in fact reasonable accommodations. (Ibid.) As a result, the court found the employer failed to meet its initial burden as the party moving for summary judgment. (Ibid.) Here in contrast, EDD supplied evidence sufficient to show its offered accommodation was in fact reasonable. It showed the position included the same job classification, same branch and division, and the same salary and benefits. White never rebutted this showing with evidence that her disability would somehow not be accommodated in the new position.
Finally, White contends that EDD failed to be proactive in exploring other options of accommodation. We disagree. Cornelius, for instance, twice offered to work with White to discuss options to accommodate her scheduling needs. Cornelius's supervisor, Qun Xu, later sent links to White concerning reasonable accommodations and equal employment opportunities, and also discussed the potential of transferring to a comparable job. And Pam Geitner, in light of White's issues with Cornelius, suggested both in person and in writing a potential rotation to another position and encouraged White to engage in a process flow meeting or mediation to overcome her conflict with Cornelius.
To show these efforts fell short, White focuses on Geitner's offer of mediation and a process flow meeting, and asserts that Geitner provided no explanation about either option. But to the extent White has identified a shortcoming in EDD's efforts, it is not one sufficient to show she was denied a reasonable accommodation.
To begin, we find the facts somewhat different than White claims. White claims she "was not given an[y] information" about the process flow meeting, but the record shows otherwise. In an e-mail, Geitner mentioned the process flow meeting as an option to "foster communication between you and [Cornelius]," and added that if pursued, the process would involve "you and [Cornelius] communicat[ing] on the details of daily work to accomplish the tasks at hand in a timely and accurate manner." White perhaps preferred more information on the topic, but she never inquired further and cannot now claim she was given no information about the option.
White's characterization of Geitner's discussion of mediation finds more support in the record. In an e-mail, Geitner wrote that she and Xu had previously provided White with mediation materials, and suggested that White "again" consider mediation. White, however, later e-mailed that she did not remember receiving the mediation materials Geitner mentioned, and Geitner never appears to have responded. But even accepting White's contention that she never received these mediation materials, we do not find that White provided evidence sufficient to show EDD shirked its duties to provide accommodation options when the evidence demonstrates that EDD granted White's request to temporarily take Tuesdays and Thursdays off, granted two separate requests for a month off, granted her request for a temporary 20-hour work schedule, offered to discuss options to accommodate her scheduling needs, suggested a process flow meeting between her and Cornelius, provided information about reasonable accommodations and equal employment opportunities, temporarily allowed her to work under a new supervisor, and discussed other comparable jobs—all before ultimately granting White's request for a hardship transfer.
III
We turn finally to White's claim that EDD failed to engage in an interactive process. The trial court rejected the claim after finding the evidence sufficiently showed that EDD timely and in good faith engaged in an interactive process with White when she requested to be accommodated. We agree.
FEHA requires employers to engage in a "timely, good faith, interactive process" to determine whether an employee suffering from a disability can be reasonably accommodated. (Gov. Code, § 12940, subd. (n).) An " ' "interactive process" . . . is an informal process with the employee or the employee's representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.' " (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)
In seeking summary judgment on White's interactive-process claim, EDD presented evidence showing it promptly responded to each of White's requests for an accommodation, including when she first requested an accommodation in April of 2013. White at that time provided a doctor's note stating that it would be in her best interest to be assigned to a workplace or environment that decreased her stress. The next day, the evidence shows, Geitner met with White to discuss potential accommodation options, including a potential rotation into a comparable position and a process flow meeting and mediation to address her issues with Cornelius. Geitner also mentioned that telecommuting—which White expressed an interest in—was not a reasonable option given White's role in handling confidential personnel records. Shortly after, Xu also met with White and encouraged her to consider other comparable positions with EDD, offered some examples of potential positions, and later shared links concerning reasonable accommodations and equal employment opportunities. After White continued to voice complaints about Cornelius, another EDD employee met with White about the process for transferring to a comparable position with EDD, which ultimately led to EDD granting White's request for a transfer.
In response to this evidence, White first contends Geitner's discussions with her in April of 2013 were inadequate. Although Geitner mentioned mediation and a process flow meeting at that time, White asserts that Geitner provided no explanation about either. As a result, White claims, EDD failed to engage in an interactive process with White.
This argument mirrors one of White's arguments relating to her accommodation claim. (See part II, ante.) Both arguments fail for similar reason. Again, White's evidence at most suggests that Geitner should have offered more information about the mediation process. Had EDD's interactive process started and stopped with this discussion of mediation, White's claim might have some merit. But it did not. Apart from suggesting mediation, Geitner also suggested a process flow meeting, Xu afterward met with White and encouraged her to consider other comparable positions with EDD, Xu also shared links concerning reasonable accommodations and equal employment opportunities, and another EDD employee later met with White about the potential of transferring to a comparable position with EDD and, while White's transfer request was pending, allowed White to temporarily work under a different supervisor. Against all this evidence, White offers only Geitner's apparent failure to follow up when White said she did not remember having received certain mediation information. We accept that this evidences a shortcoming, but it is not one raising a rational inference that EDD failed to engage in an interactive process in light of the other evidence.
White next claims that EDD did not act promptly enough to offer her a different job as a reasonable accommodation. But White did not request a transfer to a job that would accommodate her disability; rather, she requested to be accommodated with a different supervisor in the same job. White's attorney made this point explicit in a letter to EDD: in case EDD had "misunderstood" White's accommodation request, he wrote, White "renews her request for reasonable accommodation to be supervised by someone other than Mr. Cornelius." EDD, however, was not obligated to honor this request, as a request for a new supervisor is not a reasonable accommodation request. (See part II, ante.) Nonetheless, even though it was not obligated to offer a new supervisor, EDD later did offer White a position with a different supervisor following her filing of a request for a hardship transfer.
Finally, White faults EDD for "fail[ing] to analyze any reasonable accommodations other than a leave of absence, reduction in hours, transfer to a location of their choosing, retirement, and/or resignation." But the record shows EDD in fact did consider other options. EDD, for example, considered White's request to telecommute, though it rejected the option after finding that White's handling of confidential personnel materials made her an inappropriate candidate for telecommuting. It also suggested a process flow meeting, as well as a later start time for work—an offer that appeared to take into account White's allegation that she "usually ha[s] high pain levels in the morning." White declines to acknowledge these other efforts of EDD to find a reasonable accommodation, and instead principally focuses on EDD's failure to offer her one of the vacant positions that she preferred. But again, EDD was not obligated under FEHA to offer White the position she found preferable. (See Hanson, supra, 74 Cal.App.4th at p. 228; Thomsen v. Georgia-Pacific Corrugated, LLC, supra, 190 F.Supp.3d at p. 966.)
DISPOSITION
The judgment is affirmed. EDD is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Duarte, J.