Adams v. Sutter North Medical Foundation

Filed 10/2/07 Adams v. Sutter North Medical Foundation CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

In this case alleging disability discrimination and failure to accommodate a disability under the Fair Employment and Housing Act (Gov. Code, 12926 et seq. (FEHA)),^[1]plaintiff Catherine Adams appeals from a summary judgment entered in favor of defendants Sutter North Medical Foundation (Foundation) and Julie Eckardt. Plaintiff contends the trial court erred in determining that she failed to exhaust administrative remedies and that no triable issues existed. We shall affirm the judgment.

THE PLEADINGS

The complaint alleged as follows:

Plaintiff, a 46-year-old woman, was employed by the Foundation as a coordinator in the Marketing Department, and Eckardt was her immediate supervisor. In December 2002, plaintiff was placed on medical leave pursuant to a Doctors Release due to stress-related problems. Additionally, she had knee replacement surgery on January 31, 2003. She was released to return to work on April 3, 2003, for the knee issue, and April 16, 2003, on the stress claim.

On April 3, 2003, the Foundation informed plaintiff that she must immediately return to work or face termination. Plaintiff responded she would not be released to return to work until April 17, 2003. The Foundation terminated plaintiffs employment before April 17, 2003.

Plaintiff filed a FEHA claim on April 17, 2003, and amended it on September 24, 2003. On May 7, 2003, the Department of Fair Employment and Housing (DFEH) issued a right-to-sue letter.

The complaint alleged the following counts:

1. Failure to provide reasonable accommodations in violation of the FEHA, in that Plaintiff required [sic] reasonable accommodations to perform the essential functions of her job. Said requests [sic] were continually denied without justification/explanation by [the Foundation].

2. Disability discrimination in violation of the FEHA, in that, beginning in December 2002 and continuing to the present, the Foundation engaged in actions with the intent of discriminating against Plaintiff on account of her need for reasonable accommodation(s) and because of her disability.

3. Retaliation in violation of the FEHA (for which plaintiff presents no argument on appeal).

4. Age discrimination (expressly abandoned in plaintiffs appellate brief).

5. International [sic] infliction of emotional distress (for which she presents no argument on appeal).^[2]

Defendants filed an answer with a general denial and various affirmative defenses, including failure to exhaust administrative remedies, failure to request reasonable accommodations, and failure to engage in an interactive process.

THE MOTION

On July 28, 2005, defendants moved for summary judgment or summary adjudication, on the following grounds:

1. Plaintiff failed to exhaust administrative remedies, because her administrative claim made no claim about physical disability, denial of accommodation, or retaliation.

2. Plaintiffs claim of work-related stress and inability to work with her supervisor does not constitute a disability under the FEHA.

3. If plaintiff had a recognized disability, there is no evidence defendants knew about it.

4. There is no evidence that any action by defendants was taken because of any disability or protected conduct.

5. Plaintiff did not engage in the interactive process mandated by the FEHA to identify possible forms of accommodation of disability.

6. Plaintiff cannot establish that the Foundation failed to provide reasonable accommodation, because the Foundation gave plaintiff a four-month leave of absence, and a further leave of absence was not likely to enable plaintiff to return to work.

Defendants separate statement of undisputed facts included the following:

The Foundation is a multi-specialty medical facility with care centers in the Yuba-Sutter community. In 1987, plaintiff began working for the Marysville Medical Group, which later merged with the Foundation. In 2000, plaintiff transferred to the Foundations Marketing Department as Event Coordinator. A few months later, Eckardt became Marketing Director and plaintiffs supervisor. Plaintiff experienced problems working with Eckardt from the beginning. Eckardt informally counseled plaintiff about performance related problems, in that plaintiff had trouble meeting deadlines and was sometimes unprofessional.

On November 13, 2002, Eckardt gave plaintiff a Performance Improvement Plan (PIP), which stated (1) they discussed plaintiffs unacceptable tone and comments in the past with a verbal warning last given on August 29 as a result of another discussion; and (2) in October 2002, they discussed the importance of timely collection and transfer of pledges for a golf tournament, but Eckardt found undeposited checks and unmailed letters in plaintiffs desk. On November 19, 2002, plaintiff presented a written rebuttal to the Performance Improvement Plan, which did not dispute that she had not accomplished the tasks set forth in the Plan, but gave her explanation as to why the tasks were not accomplished.

On December 3, 2002, Eckardt gave plaintiff a Written Warning, which stated in part: During her oral presentation [at a health fair, plaintiff] said the health fair was designed to help people find doctors. Later in the day we discussed that she implied exactly what I had asked her to be sure not to. She said that during the presentation she was representing the health fair not [the Foundation]. I explained that as a member of the Marketing/Community Relations Department she was always representing [the Foundation]. [] . . . During discussion [plaintiff] indicated she was going to share her allocation suggestions with [members of a business/community healthcare committee]. I told her to not share the information, as the committee should come to their own conclusions and providing her opinion in advance could be construed to imply that these allocations were the wish of [the Foundation]. [] . . . [Plaintiff] provided information in advance to the committee member, which is what I had instructed her not to do.

In a written rebuttal, plaintiff said she e-mailed the information to the committee chair, not to the members, and did not think it was wrong to do so.

On December 11, 2002, Eckardt met with and informed plaintiff she was being moved to probationary status. At that meeting, plaintiff said she was experiencing heart palpitations.

On December 12, 2002, plaintiff called in sick. The Foundation sent her a letter stating it had designated her absence as qualifying for Family or Medical Leave (FML) if she provided a health certification. Plaintiff told the Human Resources Department she was going back to work and did not need a leave of absence.

On December 13, 2002, plaintiff called in sick again. Eckardt learned plaintiffs illness (which plaintiff described as job stress) might be work-related. Plaintiff filed a workers compensation claim asserting her injury was high blood pressure and heart palpitations resulting from [t]hreatening manner of supervisor during PIP meeting and follow up meetings - threatening unjust termination of employee.

Plaintiff gave the Foundation a doctors note indicating she was unable to work from December 17, 2002, to December 31, 2002. The handwriting is not completely legible but refers to anxiety and job.

Plaintiff experienced heart palpitations and high blood pressure when Eckardt presented her with the Performance Improvement Plan. When plaintiff sought medical treatment for her stress-related condition, her health care providers did not diagnose any problem with her heart. When plaintiff was off work in December 2002, her heart palpitations and high blood pressure subsided. Plaintiff wanted to return to her job. She testified the stress would have been different if Eckardt were not her supervisor. Plaintiffs stress and anxiety were caused by her relationship with Eckardt.

On December 31, 2002, plaintiff did not return to work.

On January 2, 2003, the Foundation sent plaintiff a letter, stating, We understand that you are off work due to a medical condition, and her leave was not protected by the Family Medical Leave Act (FMLA) because the Foundation had not received the necessary physician certification. The letter stated: If you believe that your condition qualifies as a disability under the [FEHA] or Americans with Disabilities Act, please contact the Human Resources Department within 24 hours of receipt of this letter to discuss whether a reasonable accommodation is available. Plaintiff did not do so.

Plaintiff had knee surgery on January 30 or 31, 2003. Up until the surgery, she never missed work because of her knee. The surgery did not prevent her from returning to work on April 2, 2003.

On February 5, 2003, the Foundation sent plaintiff a letter stating, We understand that you are off work due to a medical condition which may be a new qualifying event [the knee surgery] other than your workers compensation injury. The letter enclosed a physician certification form and (despite the prior letter saying her leave was not protected by FMLA) said, your FMLA leave which entitles you to 12 weeks has been running since December 16, 2002, concurrent with your workers compensation leave.^[3]

Plaintiff returned the doctors certification indicating she would be off work until April 1, 2003.

On March 4, 2003, plaintiffs workers compensation claim was denied on the grounds she did not have a diagnosable condition under the Labor Code, and her claim was based on good faith personnel actions which would bar compensation under the Labor Code.

On March 10, 2003, the Foundation sent plaintiff a letter, stating her FMLA leave expired on March 4, 2003, but the Foundation is willing to continue your leave through the latest physician certification return-to-work date of April 1, 2003 and expected plaintiff to return to work on April 2, 2003.

A doctors note dated April 1 or 2, 2003, was faxed to the Foundation. The note bore a Foundation letterhead and checked boxes indicating that it was from the Urgent Care Clinic and that plaintiff was not able to return to work until (the handwritten date of) April 16, 2003. The note did not specify any reason. Plaintiff told the Foundation that this note related to stress.

The Foundations Human Resources Director, Diane Smith, submitted a declaration of her telephone conversation on April 2, 2003, in which plaintiff indicated she was not returning to work on that date. Smith attested: I asked, you know, are you coming to work this morning. And she [plaintiff] indicated that no, she was not. And when I started to question, you know, why, why was she not going to be there, she then indicated that she had had a lot of stress. And so then I started questioning whether or not this was somehow related to the previous stress claim that she had submitted. She got confused at that point, and at first said yes and then said no. [] And then I asked, Well, is this related to your knee injury? And she indicated that no, her knee was fine, she didnt -- she was completely recovered from that. And I said, Well, then, why are you not returning to work this morning? [] And basically she indicated that she, you know, she was under stress, she couldnt work for Julie Eckardt. And I responded with, Well, but thats your supervisor. And, you know, thats the position that you hold here is marketing coordinator. And the only person that the marketing coordinator position will report to is the marketing director which is Julie. And I said, you know -- and then she indicated -- thats when she indicated that, you know, she had, you know, this additional two weeks of leave requested. [] And I said, Well, whats going to make this different in two weeks? The situation is that Julie is still going to be the supervisor in two weeks. And she said, Well, I just cant come to work for Julie. And basically thats how we left the conversation. And I took that to mean that she wasnt going to be returning to work.

On April 2, 2003, the Foundation sent plaintiff a letter stating, Since[] you did not return to work on April 2, 2003, [the Foundation] has terminated your employment effective April 2, 2003.

Plaintiff told Tiffany Payne (the Foundations disability coordinator) that she (plaintiff) needed more time off due to job-related stress.^[4]

Plaintiffs leave of absence from December 16, 2002, through April 2, 2003, exceeded the leave provided by FMLA and Foundation policy.

On April 17, 2003, plaintiff filed a DFEH complaint against the Foundation. On the complaint form, plaintiff checked the boxes that she was fired and harassed on the basis of age and other. Under other, plaintiff wrote Eckardt, Expiration of FMLA. She alleged as the reason for the adverse action that she was under the care of two doctors (for job stress and knee replacement surgery) and two different return dates with a two week difference, but Eckardt used the first return date and terminated plaintiffs employment. Plaintiff did not check the boxes for physical disability, denial of accommodation, or retaliation.

Also on April 17, 2003, plaintiff filed a DFEH complaint against Eckardt. She checked the boxes that she was fired and harassed on the basis of age and other (for which she wrote, didnt want me as her employee [and] expiration of FMLA). Plaintiff accused Eckardt of a desire to terminate my employment, retaliation after written rebuttals against her, & her desire to have younger - out of college employees. Plaintiff did not check the boxes for physical disability, denial of accommodation, or retaliation.

On September 24, 2003, plaintiff filed amended DFEH complaints against Eckardt and the Foundation, in which she added a check mark in the box for mental disability.

During plaintiffs employment, neither Eckardt nor Smith had any knowledge that plaintiff had any type of disability. Defendants submitted Eckardts declaration, which stated in part that she was not aware at any time that plaintiff suffered from a disability, nor did Eckardt perceive that plaintiff was in need of any type of accommodation. Smiths declaration said she was not aware of any medical condition or health-related problems of plaintiff, and plaintiff never indicated at any point that she suffered from a disability or that she needed accommodations in the workplace.

THE OPPOSITION

Plaintiff opposed the summary judgment motion.

Plaintiff admitted most of the factual assertions in defendants separate statement of facts.

She disputed some of defendants factual assertions, but the trial court sustained all of defendants evidentiary objections (which plaintiff does not assign as error on appeal), except as to plaintiffs challenge to defendants assertions that (1) plaintiff told Human Resources that she needed additional time off due to job-related stress, and (2) Smith had no knowledge during plaintiffs employment that she had any type of disability. In disputing these two points, plaintiff cited to her deposition.

Plaintiff submitted her own declaration, attesting as follows:

She began working for the Foundation on July 1, 1987, and became Event Coordinator in mid-2000. Eckardt became her supervisor in September 2000. Plaintiff and Eckardt had some employment issues. We got along a great deal of the time, we worked well together at times, and other times, we had issues. I felt harassed by Defendant Eckardt. Specifically, she would belittle me and my work.

In November 2002, Eckardt put plaintiff on a PIP, which was a tool for improvement that was not necessarily viewed as negative. Eckardt later gave plaintiff a written warning for insubordination.

Plaintiff went on disability leave for stress on December 17, 2002. She had high blood pressure, heart palpitations, and anxiety attacks. They prevented her from working. While on leave, she took high blood pressure medicine and anti-depressants. Her treating doctor was Dr. Winthrop Hedrick.

While still on leave for stress, plaintiff had knee replacement surgery on January 30, 2003, and was placed on medical leave by Dr. Garry Vallier for the knee issue until April 2, 2003, when she was to return to work.

Before the April 2, 2003, release date, plaintiff began to experience increased stress related symptoms of anxiety attacks, irritable bowel syndrome, and high blood pressure. In March 2003, she consulted with a Dr. Patwell, who advised her to undergo counseling to learn to deal with difficult people. He concluded counseling would be beneficial, as it could reduce her anxiety and stress. He told her she was not scheduled to return to work until April 16, 2003. He had knowledge of her leave and return date because he was the doctor who verified her disability to the State under SDI (State Disability Insurance). He said he would fax the proper paperwork to her employer. Plaintiff later made an appointment for psychological counseling on the first available date, April 7, 2003.

Plaintiff attested:

7. On the morning of April 2, 2003, I spoke with Diane Smith, Human Resources Director for [the Foundation], about my return to work as I had been scheduled to return to work on April 2, 2003, and I wanted to verify that she received the information from Dr. Patwell which extended my leave to April 16, 2003. Diane Smith was fully aware of the fact that I had knee surgery and my subsequent recovery period. Ms. Smith was also aware that I had been out on stress leave. During my conversation with Ms. Smith, I informed Ms. Smith that my disability leave had been extended to April 16, 2003, due to stress. Furthermore, I informed Ms. Smith that the additional 2 weeks of leave would allow me to receive psychological counseling and that I had an appointment on April 7, 2003, to commence my counseling. The counseling was to assist me in returning to work and in dealing with difficult people which in turn would have helped me cope with my anxiety and would have been beneficial for my high blood pressure. I stated that I would be ready and able to return on April 16, 2003. I never resigned nor did I state that I cannot and/or will not work for Julie Eckardt. It has always been my intention to return to work even if it meant working for Julie Eckardt.

8. Diane Smith stated to me that my medical/doctor released [sic] meant nothing and that she would make the appropriate business decision. Ms. Smith did not ask me if I required accommodations to return to work. Diane Smith stated that if I didnt return to work today, she would treat it as job abandonment.

THE REPLY

In reply to plaintiffs opposition, defendants submitted written objections asking the trial court to strike plaintiffs denials that were unsupported by citation to evidence and treat those matters as undisputed. Defendants also asked the trial court to disregard assertions by plaintiff supported only by citation to her declaration, because her declaration contradicted her deposition testimony. Defendants asked the trial court to strike as hearsay the portion of plaintiffs declaration relating alleged statements or views of Dr. Patwell.

THE RULING

Following a hearing, the trial court issued an order granting summary judgment. The court sustained all of defendants evidentiary objections (which plaintiff does not assign as error on appeal), except as to plaintiffs challenge to defendants assertions that (1) plaintiff told Human Resources that she needed additional time off due to job-related stress, and (2) Smith had no knowledge during plaintiffs employment that she had any type of disability.

The trial court concluded the FEHA claims failed due to plaintiffs failure to exhaust administrative remedies. The court noted that, in her DFEH complaints, plaintiff failed to check the boxes for physical disability, failure to accommodate, or retaliation. Instead, she claimed only age and mental disability discrimination. The court noted plaintiff had no defense on this issue, contending only that the DFEH allegations were like or related to the new allegations in her complaint to the court. The court said failure to accommodate is not like or related to mental disability, nor are physical and mental disability alike or related.

The trial court alternatively granted summary adjudication on other grounds, as follows:

Plaintiff had no actionable disability under FEHA. She merely had an inability to work with her supervisor, which is not sufficient to establish the requisite limitation on the major life activity of employment. Although plaintiff contended she suffered from high blood pressure, heart palpitations, irritable bowel syndrome, and anxiety, affecting her ability to work, she failed to establish these symptoms were more than temporary.

The claims for failure to accommodate and physical disability discrimination also failed because neither Eckardt nor the Foundation knew plaintiff had a disability or needed accommodation. Plaintiff did not have a disability and, if she did, she did not inform defendants and did not engage in the interactive process in good faith. Defendants did not have an obligation to return plaintiff to her marketing job with a new supervisor as an accommodation.

The court said the evidence showed that plaintiff had underlying performance problems, which resulted in Eckardt placing her on a PIP, giving her a written warning for insubordination, and advising her she would be placed on probation when her performance did not improve. Plaintiff was terminated for abandoning her job when she failed to return following a leave of absence. Defendants met their burden to show a legitimate, non-discriminatory basis for adverse action, and plaintiff failed to submit admissible evidence to create a disputed issue of material fact.

The claim of failure to accommodate also failed because the Foundation accommodated plaintiff by providing her with a leave of absence which satisfied applicable law and company policy. The blank doctors note requesting a further extension to April 16, 2003, was orally explained by plaintiff as being based upon work-related stress caused by working with Eckardt. The Foundation was not required to grant further leave for an employee who was not able or willing to work with her supervisor.

Plaintiff appeals from the ensuing judgment dismissing her case.

DISCUSSION

I. Standard of Review

A motion for summary judgment will be granted if the submitted papers show that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c), (section 437c).) A defendant meets its burden of showing that a cause of action has no merit if it shows that one or more elements of the cause of action cannot be established, or that there is a complete defense. ( 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)

The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true (id. at p. 851), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence. (Id. at p. 854.)

We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) (Kahn v. East SideUnionHigh School Dist. (2003) 31 Cal.4th 990, 1003.) First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving partys showing has established facts which negate the opponents claims and justify a judgment in movants favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.] (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)

II. Exhaustion of Administrative Remedies

Plaintiff contends she did exhaust her administrative remedies under the FEHA because, even though she may not have checked every box on the initial DFEH complaint, she clearly put defendants on notice of the basis of her claims. We have no need to address this contention because, even assuming for the sake of argument that plaintiffs case is not barred by failure to exhaust administrative remedies, it still fails.

III. Abandonment of Job

Plaintiff argues the trial court got it wrong by basing its decision on the incorrect conclusion that plaintiff quit her job and refused to work for Eckardt.

However, the trial court did not say plaintiff quit but that she was terminated for abandoning her job, when she failed to return following a leave of absence. The courts use of the term abandonment affords no basis for reversal of the judgment. Thus, in context, the abandonment was plaintiffs failure to return to work following a leave of absence. Her failure to return to work following the leave of absence is undisputed. The Foundations letter advising plaintiff of her termination stated, Since[] you did not return to work on April 2, 2003, [the Foundation] has terminated your employment . . . . Plaintiff cited no evidence supporting her denial of defendants assertion that plaintiff was terminated because she could not return to work on April 2, 2003. Therefore, the trial court disregarded her denial -- an evidentiary ruling unchallenged by plaintiff on appeal.

Plaintiff argues she created a triable issue by stating in her declaration, I never resigned nor did I state that I cannot and/or will not work for Julie Eckardt. It has always been my intention to return to work even if it meant working for Julie Eckardt. The point provides no basis for reversal. It is not inconsistent with and does not contradict the Foundations stated reason for the termination -- plaintiffs failure to return to work following expiration of her leave of absence. We reject, post, plaintiffs argument that the Foundation was required to extend her leave of absence.

IV. Disability

Plaintiffs summary of her argument says she was disabled, per FEHA, but assuming arguendo she was not, she was clearly perceived as disabled . . . . Plaintiffs subheading on this point says, Appellant Was, If Not Actually Disabled, Absolutely Perceived to Be Disabled. She presents no discussion or citation to authority to indicate she had or has a disability under the FEHA.

To give context to plaintiffs argument about the perception of disability, we explain why we agree with defendants that, as a matter of law, plaintiff had no actual disability under the FEHA.

Thus, the FEHA defines both physical disability and mental disability as conditions that limit[] a major life activity. ( 12926, subds. (i), (k).) Although employment is obviously a major life activity, the inability to get along with ones supervisor does not constitute a limitation under the FEHA. Thus, the inability . . . to work under a particular supervisor[] does not constitute a qualified disability [under the FEHA]. (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 628, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031, fn. 6 [the FEHA affords broader protection than the federal counterpart (Americans with Disabilities Act (ADA)), because the FEHA defines disability as a limitation on a major life activity, whereas the ADA defines disability as a substantial limitation on major life activity].) Hobson rejected an employees contention that she was effectively prevented from performing a particular job because of negative supervision by her supervisor. (Ibid.)

As indicated, Colmenares disapproved Hobson and other cases to the extent they hold or suggest the federal laws substantial limitation test applies to claims of physical disability brought under the FEHA. (Colmenares, supra, 29 Cal.4th at p. 1031, fn. 6.) Though not addressed by the parties, we consider whether Colmenares overruled Hobsons conclusion that the inability to work with one supervisor does not constitute a FEHA disability. In overruling Hobson, Colmenares described Hobson as holding that employee opposing a summary judgment motion who offered evidence of only minor limitations but not of substantial limitations, did not have a physical disability under the FEHA. (Colmenares, supra, 29 Cal.4th at p. 1031, fn. 6.) Hobson said that, in order to determine whether a disability substantially limits a major life activity, the court looks at the effect of the alleged impairment and, by the plaintiffs own assessment, her ulcerative colitis condition was not a substantial impairment, because she testified she was not prevented from performing the work, and the only express limitation she placed upon her own activities was that she wouldnt want to go on a 50-mile bike ride away from an available restroom . . . . (Hobson, supra, 73 Cal.App.4th at p. 628.) Hobson said, We reach this conclusion before we even consider appellants other contention that she was effectively prevented from performing a particular job because of the negative supervision of [her supervisor]. The federal courts interpreting the ADA as well as all California courts which have interpreted the FEHA, have uniformly declined to extend protection to persons whose alleged disabilities rendered them unable to perform a particular job even though they might have been physically able to work in a different position. [Citations.] In other words, the inability to perform one particular job, or to work under a particular supervisor, does not constitute a qualified disability. [Citation.] (Ibid.) Hobson added the plaintiffs assertion that her colitis attacks may be precipitated by stress was an (impermissible, belated) attempt to shift the focus to a mental condition. (Id. at p. 629.)

We conclude Colmenares did not overrule Hobsons holding that the inability to work under a particular supervisor does not constitute a FEHA disability.

We further conclude that, applying the mere limitation test (as opposed to the federal substantial limitation test), the inability to work under a particular supervisor does not constitute a limitation on a major life activity.

Here, plaintiff blamed her stress and anxiety (heart palpitations, high blood pressure, and irritable bowel syndrome) on her difficulty in getting along with her supervisor, Eckardt.^[5] It is undisputed that plaintiffs problems subsided when she was on leave of absence. Plaintiff admitted in deposition that her doctors found nothing wrong with my heart.

As to plaintiffs knee problem, she agreed it was undisputed that her knee never affected her job, and her knee did not preclude her from returning to work on April 2, 2003.

Thus, plaintiff had no disability under the FEHA. We need not address defendants additional argument that plaintiffs problems were temporary and therefore not actionable under the FEHA.

As to perceived disability, plaintiff argues on appeal (as she did in the trial court) that she may have a viable claim on the basis that defendants perceived her as having a disability. She cites Toyota Motor Mfg. v. Williams (2002) 534 U.S. 184 [151 L.Ed.2d 615], which said the third prong of the test for disability under the ADA is that the employee is perceived to be disabled. In response to defendants argument that this issue is outside the pleadings, plaintiff argues she was not required to plead this theory, because it is merely a method to prove a disability.

Even assuming the issue is properly tendered, it fails.

Though not mentioned by plaintiff, the FEHA makes reference to perceptions. Thus, section 12926.1, subdivision (b), states it is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. (Italics added.) Section 12926 includes in the definition of physical disability and mental disability [b]eing regarded or treated by the employer or other entity covered by this part as having, or having had, any [physical or mental] condition that makes achievement of a major life activity difficult. ( 12926, subds. (i)(4) & (k)(4).) The recent case of Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, held an employer must explore reasonable accommodation for applicants or employees whom it regards as disabled under the FEHA.^[6] (Id. at pp. 49, 54 [employer acknowledged it withdrew a job offer to a laid-off worker because it perceived his back injury constituted a disabling physical condition limiting his ability to perform the job].)

Nevertheless, plaintiff fails to show a triable issue that defendants perceived her as having a disability. As we have seen, stress and anxiety do not necessarily constitute a FEHA disability and definitely do not constitute a FEHA disability when they arise from a distaste for one supervisor. (Hobson, supra, 73 Cal.App.4th at p. 628.)

Plaintiff claims the Foundation perceived her to be disabled based on two separate disabilities--stress and knee surgery. She argues that Human Resources Manager Diane Smiths deposition testimony established that plaintiff initially went out on leave based on stress related disability, and that plaintiff requested an extension of said leave. Plaintiff says Smiths deposition and plaintiffs declaration confirm that plaintiff requested the reasonable accommodation of another two weeks leave on April 2, 2003. Plaintiff says Smiths stated reason for refusing the extension was that plaintiff resigned as she could not or would not work for Eckardt--a point disputed by plaintiff.

However, none of this suggests that Smith or any defendant perceived plaintiff as having a disability or a potentially disabling impairment invoking the protections of the FEHA. Smith testified plaintiff was on family leave until mid-March, 2003, and Smith allowed her to remain on leave until April 2 due to the knee problem. Smith described her phone conversation with plaintiff on April 2nd as follows:

I asked, you know, are you coming to work this morning. And she [plaintiff] indicated that no, she was not. And when I started to question, you know, why, why was she not going to be there, she then indicated that she had had a lot of stress. And so then I started questioning whether or not this was somehow related to the previous stress claim that she had submitted. She got confused at that point, and at first said yes and then said no. [] And then I asked, Well, is this related to your knee injury? And she indicated that no, her knee was fine, she didnt -- she was completely recovered from that. And I said, Well, then, why are you not returning to work this morning? [] And basically she indicated that she, you know, she was under stress, she couldnt work for Julie Eckardt. And I responded with, Well, but thats your supervisor. And, you know, thats the position that you hold here is marketing coordinator. And the only person that the marketing coordinator position will report to is the marketing director which is Julie. And I said, you know -- and then she indicated -- thats when she indicated that, you know, she had, you know, this additional two weeks of leave requested. [] And I said, Well, whats going to make this different in two weeks? The situation is that Julie is still going to be the supervisor in two weeks. And she said, Well, I just cant come to work for Julie. And basically thats how we left the conversation. And I took that to mean that she wasnt going to be returning to work.

Smith testified it was her understanding that plaintiff had a stress-related workers compensation claim.

Smith testified plaintiff said the doctors note for an additional two weeks off work until April 16 was based on stress-related symptoms, though plaintiff was equivocal as to whether they were related to the initial leave.

Thus, the defense evidence established that plaintiffs problem was (and was perceived by defendants to be) one of difficulty in getting along with her supervisor -- which does not constitute a FEHA disability.

Plaintiffs declaration described the conversation as follows: I informed Ms. Smith that my disability^[[7]]leave had been extended to April 16, 2003, due to stress. Furthermore, I informed Ms. Smith that the additional 2 weeks of leave would allow me to receive psychological counseling and that I had an appointment on April 7, 2003, to commence my counseling. The counseling was to assist me in returning to work and in dealing with difficult people which in turn would have helped me cope with my anxiety and would have been beneficial for my high blood pressure. I stated that I would be ready and able to return on April 16, 2003. I never resigned nor did I state that I cannot and/or will not work for Julie Eckardt. It has always been my intention to return to work even if it meant working for Julie Eckardt. [] [Paragraph number omitted.] Diane Smith stated to me that my medical/doctor released [sic] meant nothing and that she would make the appropriate business decision. Ms. Smith did not ask me if I required accommodations to return to work. Diane Smith stated that if I didnt return to work today, she would treat it as job abandonment.

Thus, plaintiffs evidence did not refute the defense evidence that defendants perception was that plaintiffs problem related to her difficulty in working with her supervisor.

We consider immaterial plaintiffs assertion on appeal that she did not resign her job (even though she faults the trial court for finding she resigned). The issue here is whether Smith perceived plaintiff as having a disability under the FEHA. Plaintiff argues, it is crucial to remember that[] Ms. Smith clearly did not discharge [plaintiff] because she was off work, but not disabled. Ms. Smith had extended the FMLA/CFRA leave beyond its statutory (12 weeks) limits to originally accommodate [plaintiff]. Ms. Smith and [the Foundation] perceived [plaintiff] to be disabled.

Plaintiffs argument is not persuasive. The original grant of leave was not made pursuant to the FEHA. An employers accommodation (in the generic sense) of an employees needs does not support an inference that the employer must have regarded the employee as disabled under the FEHA. Thus, in Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, a bank manager traumatized by an attempted bank robbery stopped going to work and sued the bank, alleging a FEHA violation and discharge in violation of public policy in the banks communication that it had no alternative jobs available within her work restrictions. (Id. at pp. 249-250.) The appellate court reversed in part a defense summary judgment because a triable issue existed as to whether her post-traumatic stress disorder constituted a FEHA disability. (Id. at pp. 257-259.) Of concern to the case before us, however, is the plaintiffs argument in Jensen that she should be able to pursue a FEHA case, regardless of whether or not her disability met the FEHA standard, because the bank regarded her as disabled when it engaged in efforts to accommodate her. (Id. at p. 259.) The appellate court rejected the argument, stating, Wells Fargo may well regard Jensen as disabled, since she has repeatedly insisted she is. But regarding an employee as disabled, without more, does not give rise to an employment discrimination claim. As [the Jensen court] said in [an ADA case], An employer runs afoul of the ADA when it makes an employment decision based on a physical or mental impairment, real or imagined, that is regarded as substantially limiting a major life activity. [Citation.] [Citation.] [] Wells Fargo made no employment decision adverse to Jensen based on any perceived disability. It merely attempted to accommodate her after her request. That is not a basis for liability under the regarded as disabled standard. (Id. at pp. 259-260.)

Here, defendants terminated plaintiffs employment, but not because of any perception that she was disabled.

Additionally, the Foundations grant of an extension of plaintiffs leave of absence through April 1 does not support an inference that it perceived plaintiff to have a FEHA disability when it terminated her,^[8]because the evidence showed the reason for the extension was the new issue of the knee surgery. Smith testified that, before terminating plaintiff, she asked if plaintiff was remaining off work due to her knee, and plaintiff said no, she was completely recovered from that. We see nothing in the record contradicting Smiths testimony that she viewed plaintiff as choosing not to return to work because she could not get along with her supervisor.

Plaintiffs reply brief says that the knee-related disability period is irrelevant, because it overlapped the stress related leave. However, plaintiff cites no evidence (in violation of rule 8.204(a)(1)(C)), and defendants evidence indicated plaintiffs FMLA leave expired as of March 4, 2003, but the Foundation extended the leave to April 1 due to the knee surgery. In any event, plaintiff fails to show how the circumstance that the knee issue overlapped the stress issue would provide a basis for reversal of the judgment.

Plaintiffs reply brief argues there is no evidence that Smith went through the technical exercise of delineating between the FMLA/CFRA standard for qualifying malady and the ADA/FEHA standard for disability (referenced in defendants brief on the reasonable accommodation issue). However, plaintiff fails to show any technical exercise was required. Defendants evidence adequately met their burden to show they did not take any adverse employment action based on a perception that plaintiff was disabled under the FEHA.

We conclude the trial court properly determined there was no triable issue regarding disability.

V. Accommodation

Plaintiff complains the Foundation failed to accommodate her request for one additional accommodation, a leave extension through April 16, 2003. She cites no authority whatsoever. We presume this argument relates to the FEHA, which requires an employer to reasonably accommodate a disabled person. However, we have seen plaintiff did not have a FEHA disability, nor was she perceived as having a FEHA disability by defendants.

We conclude the trial court properly entered summary judgment in favor of defendants. We need not address defendants additional argument that plaintiff failed to participate in an interactive process.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1)-(2).)

SIMS , Acting P.J.

We concur:

RAYE , J.

CANTIL-SAKAUYE , J.

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^[1]Undesignated statutory references are to the Government Code.

^[2]Since plaintiff makes no appellate argument concerning retaliation, age discrimination, or intentional infliction of emotional distress, we omit discussion of those points.

^[3]The federal FMLA (Family Medical Leave Act) and state CFRA (California Family Rights Act) have a different standard than disability under section 12926. The 12-week FMLA and CFRA leave is available for an employees serious health condition that makes the employee unable to perform the functions of the position of such employee. (29 U.S.C. 2612(a)(1)(D);  12945.2, subd. (c)(3)(C).) Disability under section 12926 means (1) a physical disease, disorder, or condition that affects a specified body system (neurological, immunological, etc.) and limits a major life activity, or (2) a mental disorder or condition, such as mental retardation, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. ( 12926, subds. (i), (k).)

^[4]On its face, it is unclear how this assertion helps defendants. However, the cited evidence was plaintiffs deposition testimony that she told Tiffany the requested extension for additional leave until April 16 was related to the same stress-related situation that was the subject of her workers compensation claim, and there was no new problem. In opposing summary judgment, plaintiff disputed the assertion but with the mere response that she presented the doctors release through April 16. She cited an excerpt from Smiths deposition, which does not refute the cited testimony from plaintiffs deposition that there was no new problem.

^[5]In response to defendants assertion that her stress and anxiety were caused by her relationship with Eckardt, plaintiff responded without citation of evidence, Deny. That was part of it, but, [the Foundations] inaction exacerbated it. The trial court deemed the point undisputed due to her failure to cite evidence.

^[6]Gelfo, supra, 140 Cal.App.4th 34, held, as a matter of first impression in California, that an employer has a duty under the FEHA to provide a reasonable accommodation to an employee who is not actually disabled, but is regarded as being disabled. (Id. at pp. 56-60.) We have no need in this case to determine whether we agree with Gelfo despite the apparent incongruity of accommodating a nonexistent disability. Gelfo indicated an employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employees abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions. (Id. at p. 59.) Gelfo noted the ADA defines as disabled those persons with impairments that do not meet the ADA definition of disability but who are treated by their employer as having an ADA disability. (Id. at pp. 59-60.)

^[7]Obviously, plaintiffs use of the word disability in her self-serving declaration does not suggest that Smith or the Foundation perceived plaintiff as having a disability under the FEHA standard.

^[8]The grant of the extension did not constitute an adverse action and therefore cannot support a FEHA claim.