Elizabeth Stevenson v. Abbott Laboratories , 639 F. App'x 473 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIZABETH STEVENSON, an No. 14-55749
individual,
D.C. No. 8:13-cv-00579-DOC-
Plaintiff - Appellant, RNB
v.
MEMORANDUM*
ABBOTT LABORATORIES, a California
corporation; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted April 8, 2016**
Pasadena, California
Before: SILVERMAN and GRABER, Circuit Judges, and DORSEY,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Jennifer A. Dorsey, United States District Judge for the
District of Nevada, sitting by designation.
Plaintiff Elizabeth Stevenson, a sales representative for Defendant Abbott
Laboratories, was injured in a car accident. Plaintiff took 10 months of medical
leave. Toward the end of the leave period Defendant replaced her with another
employee. Plaintiff did not take another position with Defendant, and her
employment ended after a year of leave. She brought this action, claiming
disability discrimination under the California Fair Employment and Housing Act
("FEHA") and alleging termination in violation of public policy. The district court
granted summary judgment to Defendant. On de novo review, Johnson v. Poway
Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011), we affirm.
1. Defendant’s leave policy is neutral and non-discriminatory. It provides
job protection and full pay for up to 26 weeks, after which a still-disabled
employee can apply for extended disability plan benefits for another 26 weeks. If
an employee does not return to work at the end of a year of leave (of any kind), the
employee’s employment ends. Defendant followed that policy with respect to
Plaintiff, and she does not argue to the contrary. Assuming, then, that Plaintiff
made out a prima facie case of discrimination, Defendant offered a legitimate non-
discriminatory reason for its actions, and the record contains insufficient evidence
of pretext to create a genuine issue of material fact. See Yanowitz v. L’Oreal
USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005) (applying three-part framework to
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FEHA discrimination claim); Raytheon Co. v. Hernandez, 540 U.S. 44, 53–54
(2003) (holding that a neutral employment policy meets the employer’s obligation
at step two). That is particularly true here, because Plaintiff had taken an earlier
six-month medical leave and had been returned to work with certain
accommodations.
2. Defendant engaged in a timely, good faith interactive process as required
by California Government Code section 12940(n). When Plaintiff’s 26 weeks of
paid leave expired, Defendant wrote to Plaintiff providing contact information for
a leave specialist and told her that, if at any time she felt there was anything
Defendant could "do to assist with [her] return to work, please let [Defendant]
know." Plaintiff understood that, if she did not return to work by a particular date
(three months before her release to return to work), her job might no longer be
available. Additionally, periodically throughout her leave, Plaintiff and supervisor
Merdalo communicated about Plaintiff’s medical progress; Defendant even helped
her find a new doctor. Later, when Plaintiff’s unpaid leave expired, Defendant
directed Plaintiff to a job-posting board and put her in touch with the diversity
manager. After she was released to return to work, Plaintiff told Defendant that
she would not relocate for a position and would accept a job only if it were within
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easy driving distance of her home, but Defendant was unable to offer such a
position.
3. Reasonable accommodation beyond the extended leave was not required
for two reasons. First, California courts do not require that medical leave be
indefinite or that a job be held open indefinitely for a temporarily disabled
employee. Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 68 (Ct. App. 2000).
Here, leave was indefinite because Plaintiff’s doctors extended it repeatedly, and
until three weeks before her return Plaintiff did nothing to dispel Defendant’s
belief that she would never return to work. Second, after Plaintiff was released to
work, she was not disabled.
4. Preventing discrimination in the workplace is a fundamental public
policy of California. City of Moorpark v. Superior Court, 959 P.2d 752, 762–63
(Cal. 1998). But because the record does not disclose discrimination, Plaintiff’s
claim for termination in violation of public policy also fails.
AFFIRMED.
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