Sgarlato v. County of Riverside CA4/2 (2023) · DecisionDepot
Sgarlato v. County of Riverside CA4/2
California Court of Appeal Feb 8, 2023 No. E077448Unpublished
Filed 2/8/23 Sgarlato v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
CAMELIA SGARLATO,
Plaintiff and Appellant, E077448
v. (Super.Ct.No. RIC1809268)
COUNTY OF RIVERSIDE, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Irma Poole Asberry,
Judge. Affirmed.
Camelia Sgarlato, in pro. per., for Plaintiff and Appellant.
Smith Law Offices, Douglas C. Smith, and Karen L. Capasso for Defendant and
Respondent.
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Plaintiff and appellant Camelia Sgarlato was terminated from employment as a
registered nurse for respondent Riverside County after the county determined she
couldn’t perform the essential functions of her job when she sought to return under new
restrictions after an absence. They also determined an accommodation wasn’t possible.
Sgarlato sued the county for disability discrimination, failure to stop disability
discrimination, failure to accommodate a disability, failure to engage in an interactive
process in seeking an accommodation, and retaliation. The trial judge granted summary
judgment in the county’s favor on all causes of action, and Sgarlato appeals. We agree
with the trial judge that Sgarlato failed to provide evidence to create a triable issue of fact
concerning discrimination, failure to accommodate, failure to stop discrimination, failure
to engage in an interactive process, or retaliation, and conclude all five causes of action
fail as a result. We therefore affirm the grant of summary judgment.
I
FACTS
A. Sgarlato’s Employment with the County
Camelia Sgarlato was first hired on January 3, 2008 as a per diem Registered
Nurse III for Riverside University Health Systems (RUHS). After moving around, she
worked in permanent Registered Nurse III positions in Riverside County facilities from
July 15, 2010 until March 2018, when she was released from employment.
On October 4, 2012, Sgarlato injured her left foot and ankle while pushing a
patient on a gurney. She didn’t initially report the injury because of a bad experience she
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had reporting a prior work injury. Instead, she went back to work as usual and assumed
her ankle would improve. However, by December, she started feeling increased pain and
stiffness after standing and walking while at work. Eventually she sought medical
treatment and discovered she had suffered a severe tendon tear.
On January 22, 2013, and in subsequent follow-up reports, Sgarlato’s physician
reported the injury and recommended she be placed in a position that would allow her to
remain sedentary. On April 12, 2013, her health care provider filled out a form entitled
Documentation of Disability, in which he indicated Sgarlato could walk a maximum of 5
minutes per hour, stand a maximum of five minutes per hour, and lift a maximum of 10
pounds. He said the limitations would last more than six months. The form requested
Sgarlato have “sedentary duties only.” In weekly Work Status Reports over the next
couple months, her health care provider indicated she should be placed in a sit down job,
with no standing, walking, climbing, stooping, bending, kneeling, or squatting.
Sgarlato’s employer accommodated these work restrictions. First, they put her
temporarily in a position in a clinic where she could review medical charts while seated.
On June 27, 2013, they placed her in a sedentary case review position in their Case
Management unit. In September 2013, she was hired to a Registered Nurse III position in
the same unit, where she continued to work until July 2015.
In April 2015, Louise O’Rourke took over as director of Case Management, where
she was charged with improving operations. On July 23, Pasha Dourseau, an assistant
manager, saw Sgarlato filling out personal court documents at her desk. Dourseau
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advised Sgarlato she couldn’t conduct personal affairs during her work time and asked if
she was on a break. Dourseau and Sgarlato have different versions of what happened
next. According to Dourseau, Sgarlato said she was leaving work early to file the
documents in court. She said she asked Sgarlato whether she had received permission to
do so, and Sgarlato erupted, got up from her desk and bumped her intentionally.
According to Sgarlato, she told Dourseau politely that she was on her lunch break and
then went to the restroom. When she returned, she said she unintentionally bumped into
Dourseau, who was coming out of her cubicle. She says she apologized, but Dourseau
accused her of bumping her on purpose.
Dourseau went to O’Rourke to report the incident, and Sgarlato interrupted.
According to O’Rourke, Sgarlato stepped into the doorway of her office, denied touching
Dourseau, and yelled, “You have it out for me! You keep harassing me! You are
prejudiced!” O’Rourke said she asked Sgarlato to sit down and discuss the situation, but
Sgarlato continued yelling. In the end, O’Rourke had to physically place herself between
Sgarlato and Dourseau. She yelled “Stop now!” to get Sgarlato’s attention and calm her
down. Sgarlato eventually sat down and the three discussed the matter. According to
O’Rourke, she gave Sgarlato permission to leave early.
Sgarlato’s version of these events is quite different. She says she apologized to
Dourseau for bumping into her, but says when they were in O’Rourke’s office, Dourseau
was the one yelling and accusing Sgarlato of harassment. When Dourseau remained
agitated, Sgarlato complained that the situation was escalating to the point she was
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feeling harassed by Dourseau. She says O’Rourke responded by yelling, “You are
crippled! I am doing you a favor to [let you] work in this office. I feel sorry for you.” She
says she asked O’Rourke to stop screaming at her, and O’Rourke invited her into her
office. Sgarlato says she sat down without confronting Dourseau. When she tried to
explain what had happened, O’Rourke yelled at her to stop talking and threatened to send
her home. She agrees the three then discussed the matter. According to Sgarlato, she then
returned to her desk to finish her workday.
The following Monday, Sgarlato complained about the incident to human
resources. She met with human resources analyst Carly Obenberger and told her
O’Rourke and Dourseau had discriminated against her and harassed her and that
Dourseau falsely accused her of bumping her intentionally. She also accused O’Rourke
of screaming at her. Obenberger took notes during the meeting and gave Sgarlato the
form explaining county policy and the complaint process. Sgarlato filed a complaint the
same day, accusing O’Rourke and Dourseau of discriminating against her based on race,
color, national origin, and disability and of retaliating against her based on the July 23
incident.
Sgarlato was temporarily reassigned from Case Management to Patient Accounts
and then to Quality Management, which allowed her to report to a different supervisor
while human resources conducted an investigation. After the investigation, human
resources found the allegations to be unsubstantiated. Human resources contacted
Sgarlato around June 20, 2016 to tell her they had found no discrimination or harassment
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had occurred, and they directed her to return to her position in Case Management on June
23, 2016, 11 months after the incident. The same day, Sgarlato filed a workers’
compensation claim for emotional distress based in part on her treatment by her managers
in Case Management.
Sgarlato returned to work in Case Management as directed. However, when
O’Rourke asked her to sign a form acknowledging she could work in the position she
previously had without needing accommodations, she refused, saying she disagreed with
how the form characterized her work restrictions. The acknowledgement form said
human resources had received a notification on September 22, 2015 from Dr. Watkin that
Sgarlato had a condition that required permanent work restrictions, specifically she
should be precluded from prolonged weight bearing, stay off her feet for 20 percent of
her work shift, and avoid repetitive climbing. The acknowledgment said leadership in
Case Management had determined those restrictions would not prevent her from
performing the essential functions of her position. According to Sgarlato, the medical
report that was the basis for these restrictions was written by a workers’ compensation
doctor who hadn’t seen her for more than a year. She complained the restrictions written
into the acknowledgement were outdated and inconsistent with her prior restrictions.
O’Rourke said she told Sgarlato if she wouldn’t sign the acknowledgment form,
she would have to go to human resources because she wasn’t sure she could allow her to
work. According to Sgarlato, O’Rourke was more definitive; she told her she would lose
her job if she refused to sign. She said O’Rourke raised her voice when she refused to
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sign the form, and ordered her to leave the department immediately. Sgarlato went to
human resources and told Obenberger she refused to report back to her original
department since she was uncomfortable working with O’Rourke. Sgarlato reiterated she
didn’t agree with the contents of the form, and refused to sign it. Obenberger attempted to
clarify the meaning of the acknowledgement.
Sgarlato wasn’t convinced. She refused to leave Obenberger’s office and refused
to return to duty in Case Management. Instead, she asked for human resources to reassign
her to another department in the hospital so she wouldn’t have to work under O’Rourke’s
supervision. Obenberger told her a reassignment wasn’t justified since her prior
allegations were unsubstantiated and told her there were no open positions in Quality
Management, where she had worked temporarily as an accommodation. When Sgarlato
refused to report back to Case Management, Obenberger called a manager senior to
O’Rourke, who directed her to do so. She again refused and told Obenberger she was
going home.
On July 8, 2016, Sgarlato filed a second discrimination complaint against
O’Rourke, alleging harassment and discrimination based on disability and also that
O’Rourke had threatened she would lose her job. Obenberger conducted the investigation
for human resources and concluded her allegations were unsubstantiated.
Around the same time, Sgarlato submitted a doctor’s note taking her off all work
due to a psychological condition resulting in emotional distress. She was granted family
and medical leave which continued until her leave hours ran out on September 23, 2016.
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In September, she submitted a certification from a psychologist recommending she be
relieved of all work duties until December 30, 2016. The County’s Disability Access
Office continued the interactive process with Sgarlato. They held several meetings and
granted Sgarlato medical leaves of absence while the process was ongoing.
In October 2016, Sgarlato submitted a request for accommodation seeking work in
a less stressful environment away from O’Rourke. The county denied this
accommodation request because it was not reasonable to remove an employee’s
supervisor. They also determined granting additional leave would not make it more likely
she would be able to return to work.
On January 4, 2017, the Disability Access Office and human resources issued a
denial of her request for additional leave as a reasonable accommodation. They described
as factors supporting their decision (1) her refusal to provide any details of her prognosis
to justify a medical leave of absence, (2) her refusal to work under O’Rourke’s
supervision even though she wasn’t limited in performing her essential job functions, and
(3) the fact that she had already been provided with substantial leave without showing
improvement. After serving the letter, the Disability Access Office attempted to contact
Sgarlato to determine if she had updated restrictions, but she didn’t respond.
On March 20, 2017, the county notified Sgarlato they would be filing an
application for disability retirement on her behalf if she didn’t direct them otherwise by
March 29, 2017. March 23, 2017, Sgarlato responded, explaining her situation, including
the ongoing physical problems caused by her injury and her problems with O’Rourke,
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and saying she wasn’t interested in applying for disability retirement and wanted to return
to work. She also provided additional medical information.
On April 10, 2017, Marina Martinez from human resources, told Sgarlato they had
received her letter and requested certification of her medical condition. The next day,
Sgarlato provided a medical note from her psychologist releasing her to return to full duty
from the restrictions caused by her emotional distress. On April 14, 2017, she provided a
medical note from her physician releasing her to return to work in 10 days with the
restrictions that she perform sedentary work three days a week for eight to 12 hours a day
while wearing supportive shoes with insoles.
On April 20, Martinez informed Sgarlato the county would continue the
interactive process to determine if her department was able to accommodate her new
restrictions. On May 10, 2017, Sgarlato submitted revised restrictions allowing her to
work four days a week for eight to 12 hours a day while wearing supportive shoes with
insoles.
Martinez asked Sgarlato’s department to prepare a job analysis assessing the
essential functions of her position. On May 3, 2017, the department completed the job
analysis and provided it to Martinez. Martinez then consulted further with RUHS
management and they determined Sgarlato’s restrictions could not be accommodated
because they no longer had part-time sedentary nursing positions, and no other nursing
positions were available which could accommodate her restrictions. In conducting the
review, they determined the sedentary position Sgarlato had previously occupied no
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longer existed due to a nursing shortage, the result of which was that all nurses were
expected to be able to work the floor of the hospital when needed.
On May 11, 2017, Martinez met with Sgarlato to discuss the job analysis. Sgarlato
said she had worked in two units before going out on leave. She said the job duties listed
in the job analysis were not the duties she was performing when she left those positions,
and said she was unable to perform floor work due to her restriction to sedentary work.
After the meeting Martinez contacted the new person supervising the Case Management
unit, Carlos Moreno, to confirm the job analysis correctly set out the job requirements,
and he confirmed its accuracy. He reported there were no part-time sedentary nursing
positions and also said there were no part-time nursing positions of any sort. He said
making any nursing position part-time or sedentary would have required changes to the
essential functions of the position and would have been a hardship on the department. On
June 1, Martinez contacted Sgarlato to report the job analysis they reviewed at their
meeting was accurate. After attempting to find part-time sedentary positions in another
department, Martinez called Sgarlato and explained they were unable to accommodate
her.
On July 13, 2017, Martinez sent Sgarlato a Denial of Work Accommodation
Request letter informing her she could not be effectively accommodated in her current
position and there were no current, appropriate vacancies within her department to which
she could be reassigned, but she could be considered for alternative vacant positions in
other county departments. Sgarlato returned a completed job search accommodation form
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on July 18, 2017, indicating she was willing to work only in positions within her job
series (nursing), was not willing to take a lower level position within her job series, was
not willing to take a position at a lower salary level, and was interested only in day shift
positions.
Sgarlato was added to the accommodation referral list to search for possible
alternate positions. As part of that process, she was given preferential consideration for
an alternate nursing position in the RUHS clinics. She attended a skills verification
meeting with the hiring manager, who determined she was not qualified for the position
due to insufficient knowledge and the fact the position had mobile tasks not compatible
with her restrictions. No other positions meeting Sgarlato’s requirements were located.
While she was on the accommodation referral list, Sgarlato received unemployment
benefits and then found a nursing position with another employer in September 2017. She
reported she works full-time in her new position and could not find a part-time position.
On March 16, 2018, after she rejected disability retirement, Sgarlato was sent a
letter notifying her of her release from employment, effective March 6, 2018.
B. Employment Litigation and Summary Judgment
On May 21, 2018, Sgarlato filed an initial complaint against the county. On July
24, 2020, she filed a third amended complaint alleging disability discrimination in
violation of the Fair Employment and Housing Act (FEHA), failure to prevent
discrimination in violation of FEHA, failure to accommodate in violation of FEHA,
failure to engage in an interactive process in violation of FEHA, and retaliation in
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violation of FEHA and Labor Code sections 98.6 and 1102.5. The third amended
complaint is the operative complaint.
On March 11, 2021, the county filed a motion for summary judgment seeking
dismissal of all Sgarlato’s causes of action. The county filed 39 exhibits in support of the
motion, including declarations from Obenberger, Martinez, O’Rourke and Moreno.
Sgarlato submitted only her own declaration, which didn’t set forth factual information,
but instead listed documentary evidence she was submitting. Most of those documents
were medical records and performance evaluations, and others were communications she
had with her employer, which the county also submitted.
On May 25, 2021, the trial judge, Riverside County Superior Court Judge Irma
Poole Asberry, heard argument on the summary judgment motion. On June 11, 2021, the
trial judge issued a ruling granting the motion on all Sgarlato’s claims.
The judge concluded Sgarlato’s claims for disability discrimination and failure to
prevent discrimination failed because she had presented no evidence of discrimination.
The judge pointed out Sgarlato herself had testified O’Rourke and Dourseau were the
people who discriminated against her, but the evidence established neither woman was
involved in the decision to terminate her. Even if Sgarlato had presented evidence of
discrimination, the judge concluded the county had presented evidence they had a
legitimate business reason for the decision—that Sgarlato was no longer qualified to do
her job, and they could not reasonably accommodate her as there were no available
positions. The judge pointed to the fact Sgarlato had provided no evidence the position
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she sought was still available and that requirements of the job were described as light, not
sedentary, with standing and walking described as frequent.
Regarding the retaliation claim, the judge concluded the county met its initial
burden by demonstrating they had a legitimate business reason for terminating Sgarlato.
She also concluded the county had established there was no causal link because the
supervisors she had complained about weren’t involved in the decision to terminate her.
The judge held the same analysis applied to her claim under Labor Code sections 1102.5
and 98.6.
Regarding her claim for failure to accommodate, the judge noted Sgarlato
admitted she was given the leave time she requested and was released from her emotional
distress restrictions by April 2017, leaving only her physical restrictions. The judge
concluded the evidence showed the county tried to accommodate Sgarlato by finding
sedentary positions, but none of them met her requirements. The judge rejected Sgarlato’s
argument she should have been placed in a sedentary, part-time position in her prior unit,
because the county submitted evidence her former position didn’t exist by 2017 and
Sgarlato admitted she didn’t know whether the position existed at that time. Because
Sgarlato refused lower graded or lower paid positions, there was no indication there was
an accommodation that was available consistent with her preferences.
The judge also ruled against Sgarlato on the claim the county had failed to engage
in an interactive process. The judge concluded the evidence showed the county had
consistently communicated with Sgarlato about her accommodation requests. She
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rejected Sgarlato’s argument the interactive process failed when her employer forced her
to sign the form acknowledging she could perform the job in Case Management without
accommodations. The judge held the form was not a statement that she couldn’t receive
accommodations, but only that no further accommodations were required for her to work
in the position she held at the time. The judge noted Sgarlato provided no evidence of any
other deficiencies in how the human resources department had conducted the interactive
process.
Sgarlato filed a notice of appeal on July 23, 2021. The judge entered judgment in
favor of the county on September 22, 2021. Though Sgarlato filed a proposed settled
statement in the superior court, she ultimately withdrew the request and elected to
proceed with the clerk’s transcript on appeal.
II
ANALYSIS
A. Disability Discrimination
Sgarlato argues the trial judge erred by holding she failed to present evidence
sufficient to create a triable issue of fact that she suffered disability discrimination.
To establish a prima facie case of disability discrimination under the FEHA,
Sgarlato was required to present evidence she (1) suffers from a disability, (2) is a
qualified individual, and (3) was subjected to an adverse employment action because of
the disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.) The parties
agree Sgarlato suffered from a disability due to the on-the-job injury of her foot. They
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also agree she was subjected to an adverse employment action due to the disability,
specifically that she was terminated from employment because her injury stopped her
from fulfilling the essential functions of her job as a nurse.
The question at summary judgment, and the question we now face, is whether
Sgarlato submitted enough evidence to create a triable question of fact as to whether she
was a qualified individual when the county terminated her. (See Green v. State (2007) 42
Cal.4th 254, 258 [“FEHA requires employees to prove that they are qualified individuals
under the statute just as the federal ADA requires”].) A qualified individual is a person
who can perform the essential functions of their employment. (Gov. Code, § 12940, subd.
(a)(1).) The essential functions of a job are the fundamental job duties of the position.
(Gov. Code, § 12926, subd. (f).) FEHA permits an employer to discharge a disabled
employee who, “because of a physical or mental disability, is unable to perform the
employee’s essential duties even with reasonable accommodations, or cannot perform
those duties in a manner that would not endanger the employee’s health or safety or the
health and safety of others even with reasonable accommodations.” (Gov. Code, § 12940,
subd. (a)(1).)
So, “in order to establish that a defendant employer has discriminated on the basis
of disability in violation of the FEHA, the plaintiff employee bears the burden of proving
he or she was able to do the job, with or without reasonable accommodation.” (Green v.
State, supra, 42 Cal.4th at p. 262.) “In disability discrimination actions, the plaintiff has
not shown the defendant has done anything wrong until the plaintiff can show he or she
15
was able to do the job with or without reasonable accommodation.” (Id. at p. 265.) If the
plaintiff introduces no evidence she was qualified to perform the essential functions of
the position from which she was terminated, the employer is entitled to summary
judgment. (E.g., Swonke v. Sprint Inc. (2004) 327 F.Supp.2d 1128, 1134.)
Thus, the question is whether there was enough evidence Sgarlato could work as a
Registered Nurse III at the time of her termination to warrant presenting the issue to a
jury. Sgarlato conceded she couldn’t perform the essential functions of the job as her
employer described them when she sought to return to work in 2017. The evidence is
uncontested that they told her the position would require more than sedentary work and
would be full-time. However, the issue is complicated by the fact Sgarlato had held
positions which allowed her to remain sedentary from June 2013 to July 2015.
Sgarlato relies on evidence of her past job performance to show she could work
under her work restrictions. In July 2013, when her restriction required sedentary work
only, the county accommodated her disability by finding her temporary positions and
later a permanent position in Case Management which allowed her to work at a desk. In
July 2015, after the confrontation with O’Rourke and her ensuing complaint, they moved
her to a temporary sedentary position in Quality Management. When her complaint was
found unsubstantiated in June 2016, she was supposed to return to Case Management, but
at that time she requested and obtained a medical leave due to psychological distress
caused in part by the prospect of returning to work for O’Rourke. The county doesn’t
contest she performed adequately from July 2013 to June 2016. Sgarlato points to this
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evidence that she held and performed sedentary jobs in both those departments before her
time away as creating a fact dispute over whether she was qualified to perform the
essential functions of the job as a Registered Nurse III when the county terminated her.
However, the county claimed and presented evidence that by mid-2017, they no
longer had positions like the ones Sgarlato had occupied. Sgarlato sought to return to
work in April 2017, after clearing her emotional distress disability, 18 months after she
left her job in Case Management and eight months after she left the temporary position in
Quality Management. She provided a medical note releasing her to return to work with
the restrictions that she perform sedentary work three days a week for eight to 12 hours a
day while wearing supportive shoes with insoles. She later amended the restrictions to
allow her to work under the same conditions but for four days a week. The department
evaluated her request under the new work restrictions, performed a job analysis, and
determined they had no sedentary, part-time Registered Nurse III positions available at
that time. The department reported to human resources that the sedentary position
Sgarlato sought no longer existed due to a nursing shortage, the result of which was that
all nurses were expected to be able to work the floor of the hospital. The department
supervisor said making any nursing position part-time or sedentary would have required
changes to the essential functions of the position and would have been a hardship on the
department. Faced with this analysis, Sgarlato said she was unable to perform floor work
due to her restriction to sedentary work.
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Sgarlato presented no evidence that a sedentary, part-time position did in fact exist
at the time, so she failed to create a question of material fact as to whether she was
qualified to perform the essential functions of the Registered Nurse III position. Her
reliance on Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th 245 does not help. Jensen
says that for reassignment to be a reasonable accommodation a “vacant position” must be
available to the disabled employee. (Id. at pp. 256, 264.) Though Sgarlato argues she
could work in the “desk job” she previously held, the uncontested evidence shows there
were no vacant “desk jobs” by the time she sought to return to work. As a result, we
conclude the trial judge did not err in determining Sgarlato could not prevail at trial on
her claim that her release from employment was discriminatory.
B. Failure to Prevent Discrimination
Sgarlato’s cause of action alleging the county didn’t prevent discrimination fails
for the same reason. To prevail on a claim under Government Code § 12940, subdivision
(k) for failure to prevent harassment or discrimination, a plaintiff must show (1) she was
subjected to harassment or discrimination, (2) the defendant failed to take all reasonable
steps to prevent harassment or discrimination, and (3) the failure caused the plaintiff to
suffer injury, damage, loss, or harm. (Lelaind v. City & Cnty. of San Francisco (2008)
576 F.Supp.2d 1079.) Here, since the evidence was insufficient to create a fact issue on
the existence of discrimination, it was similarly insufficient to create a fact issue whether
the county failed to prevent discrimination.
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C. Failure to Accommodate the Disability
Sgarlato argues the evidence creates a fact question as to whether the county
violated Government Code section 12940, subdivision (m) by failing to accommodate her
disability and terminating her employment. To prevail, Sgarlato must prove (1) she had a
disability under the FEHA, (2) she was qualified to perform the essential functions of the
position, and (3) her employer failed to reasonably accommodate her disability. (Scotch
v. Art Institute California (2009) 173 Cal.App.4th 986, 1009-1010.) Sgarlato bears the
burden of proving she was able to do the job with reasonable accommodation. (Nadaf-
Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977.)
As we’ve already discussed, Sgarlato has failed to present evidence she was
qualified to perform the essential functions of her job at the time of her termination. “An
employer is liable under [Government Code] section 12940(m) for failing to
accommodate an employee only if the work environment could have been modified or
adjusted in a manner that would have enabled the employee to perform the essential
functions of the job.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166
Cal.App.4th at p. 975.) Sgarlato was unable to work in her Registered Nurse III position
at the time she was released from employment. The only evidence concerning available
positions shows there were no part-time, sedentary positions that would have
accommodated her work restrictions, and the manager of the department said they
weren’t able to accommodate anyone by creating such a position due to shortages that
required all nursing positions to be staffed by people who could work the floor. Sgarlato
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told the county she couldn’t do the job, and as a result she can’t prevail on her claim that
the county failed to accommodate her.
Sgarlato argues the county failed to accommodate her “starting about October 24,
2016, . . . [when they] failed to address [her] transfer request and her leave of absence
beyond October 24, 2016.” This decision by the county doesn’t serve as a basis for her
failure to accommodate claim. Sgarlato admits she was released from her emotional
distress restrictions in April 2017, after which only her physical restrictions remained.
The county released her from employment only when she could not be reasonably
accommodated in a nursing position due to her physical injury, not due to her emotional
distress restrictions.
D. Denial of Interactive Process
Sgarlato argues the county denied her an interactive process, in violation of
Government Code section 12940, subdivision (n). As with the discrimination and failure
to accommodate claims, “section 12940(n) imposes liability only if a reasonable
accommodation was possible.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166
Cal.App.4th at p. 981.) “[A]n employee must identify a reasonable accommodation that
would have been available at the time the interactive process should have occurred.”
(Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1018.)
Sgarlato argues she wasn’t given the benefit of an interactive process. However,
the county presented evidence she was engaged in ongoing interactive processes for
years. The only evidence Sgarlato offers to support her claim “there was no interactive
20
process” comes in the form of the Employee Interactive Process Notes prepared by
human resources, but they in fact document the interactive process the county conducted
in 2017. As we described above, reasonable accommodation was not available to Sgarlato
at the time of her release from employment because she was unable to perform the
essential functions of her position or any alternate position she would consider. There
were no available nursing positions which met her restrictions, and she was unwilling to
take a non-nursing position. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376,
1389 [reassignment is required only where an “already funded, vacant position at the
same level exists”].) When there is no available accommodation, there is no need to
continue the interactive process. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra,
166 Cal.App.4th at p. 984.)
Sgarlato does not offer any evidence to support her claim she was denied an
interactive process. We therefore conclude the trial judge didn’t err by holding her cause
of action for failure to engage in the interactive process fails.
E. Retaliation
Sgarlato argues the trial judge erred by granting summary judgment on her claim
for retaliation because she showed she engaged in protected activity when she sought
workers’ compensation, it’s uncontested she was terminated from employment, and she
established a causal link between the complaint and her termination.
To establish retaliation under Labor Code section 1102.5, the employee must show
“(1) she engaged in a protected activity, (2) her employer subjected her to an adverse
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employment action, and (3) there is a causal link between the two.” (Mamou v. Trendwest
Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) To establish a causal link, the employee
must present evidence that the protected activity “was a ‘contributing factor’ to an
adverse employment action. (§ 1102.6.)” (Lawson v. PPG Architectural Finishes, Inc.
(2022) 12 Cal.5th 703, 712.)
Sgarlato argues she engaged in protected activity under Labor Code section 1102.5
when she complained “that her workers’ compensation case was settled in 2014, by her
former attorney without her consent, and the insurance did not inform her, so she could
get treatment somewhere else.” She points to federal district court cases accepting the
mere filing of a workers’ compensation claim as protected activity. Both the record
concerning her compensation claims and her arguments about them are problematic. As
the quotation from her brief shows, she appears to have filed a workers’ compensation
claim related to her foot injury in 2014 and had trouble with her attorney. But she also
filed an “industrial claim for work related stress” on June 20, 2016, which ultimately led
to her taking a medical leave of absence. We will assume, without deciding, that she is
correct that these acts constitute protected activity and also set aside potential problems
with the evidence that she made these complaints.
Sgarlato’s claim for retaliation nevertheless fails because there is no evidence to
support a jury’s inference of a causal link between the alleged protected activity and her
release from employment. To the extent Sgarlato’s position is that filing the 2014
workers’ compensation claim gave her employer a reason to retaliate, the timeline
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doesn’t work. She filed that claim in 2014, when she was employed by the county in a
sedentary Registered Nurse III position they provided as an accommodation for her
injury. They accommodated her further by hiring her to a permanent sedentary position,
which she held until she requested to be transferred in July 2015. She’s presented no
evidence, not even temporal proximity, to allow an inference that her termination in 2017
was causally linked to the filing of that original workers’ compensation claim.
Sgarlato also points to her report of emotional distress in June 2016, which she
made after being directed to return to work in Case Management under the supervision of
O’Rourke. She argues “there was close proximity in time between [her] complaints and
the County’s retaliatory conduct.” She says she “was injured on June 20, 2016, when she
was told to go back to Utilization Review-Case Management Department, under the same
manager against whom she complained.” She then points out that three days later she was
“discharged from further medical care for her workers’ compensation claim regarding her
left foot injury and released to return to her regular work.” Sgarlato points out the
acknowledgement form the county asked her to sign around that time showed they had
received notice of the workers’ compensation case related to her foot injury. And indeed,
the acknowledgment says they received guidance concerning her work limitations in
September 2015 from a doctor involved in that workers’ compensation case. But the
purported connection between the claim she suffered a work injury and her subsequent
termination is obscure. The termination occurred in 2017, after the county had tried to
accommodate Sgarlato by giving her medical leave and after her psychologist had cleared
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her to return to work. Even if temporal proximity were enough to raise a fact issue
concerning whether the termination occurred because of the protected conduct, we don’t
believe the proximity of the end of one workers’ compensation case and the onset of
another medical condition requiring leave could support finding a nexus.
We therefore conclude the trial judge properly granted summary judgment on her 1 retaliation claim.
III
DISPOSITION
We affirm the judgment. Respondent shall recover their costs of appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
RAMIREZ P. J.
RAPHAEL J.
1Sgarlato argues we should reverse the trial judge because she wasn’t provided a hearing prior to her termination. However, she made no such due process claim in her complaint in the trial court, so the issue is not before us. (Turner v. State of California (1991) 232 Cal.App.3d 883, 891.)
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AI Brief
AI-generated · verify before citing
Holding. The court held that the trial court properly granted summary judgment because the plaintiff failed to provide evidence creating a triable issue of fact regarding her disability discrimination, failure to accommodate, failure to engage in an interactive process, or retaliation claims. Specifically, the plaintiff failed to show she was a qualified individual capable of performing the essential functions of her nursing position, and the evidence showed the county could not reasonably accommodate her restrictions.
Issues
Did the plaintiff present sufficient evidence to create a triable issue of fact regarding her disability discrimination claim?
Did the plaintiff present sufficient evidence to create a triable issue of fact regarding her failure to accommodate and failure to engage in an interactive process claims?
Did the plaintiff present sufficient evidence to create a triable issue of fact regarding her retaliation claim?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We agree with the trial judge that Sgarlato failed to provide evidence to create a triable issue of fact concerning discrimination, failure to accommodate, failure to stop discrimination, failure to engage in an interactive process, or retaliation”
“Sgarlato presented no evidence that a sedentary, part-time position did in fact exist at the time, so she failed to create a question of material fact as to whether she was qualified to perform the essential functions of the Registered Nurse III”