Schoensiegel v. Abbott Laboratories Inc. CA2/1 ( 2022 )

Filed 5/24/22 Schoensiegel v. Abbott Laboratories Inc. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CAITLIN SCHOENSIEGEL, B312628, B314633
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV21537)
v.
ABBOTT LABORATORIES INC.
et al.,
Defendants and Respondents.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Barbara Ann Meiers, Judge.
Affirmed.
Aegis Law Firm, Samuel A. Wong and Ali S. Carlsen for
Plaintiff and Appellant.
Seyfarth Shaw, Joshua A. Rodine and Sumithra R. Roberts
for Defendants and Respondents.
——————————
Plaintiff Caitlin Schoensiegel sued her former employer,
defendant and respondent Abbott Laboratories, Inc. (Abbott),
alleging eight violations of the Fair Employment and Housing
Act, Government Code section 12900 et seq. (the FEHA), and the
California Family Rights Act (CFRA), which is contained in the
FEHA, in this employment discrimination action. 1 Schoensiegel
also sued her supervisor, Kiyoko Robbins (Robbins), alleging
harassment. Abbott terminated Schoensiegel after an
investigation determined that she had breached Abbott’s code of
conduct by falsifying her sales calls log. Schoensiegel, who
suffers from a rare bone disease, asserts that she was terminated
because of her disability and that Abbott’s explanation is
pretextual.
Abbott and Robbins successfully moved the trial court for
an order granting summary judgment, and Schoensiegel appeals
from the judgment entered based on that order. Schoensiegel
also appeals from an order awarding costs to Abbott and Robbins.
We conclude that Abbott and Robbins met their burden of
establishing that there is no triable issue of material fact as to
any of Schoensiegel’s causes of action.2 We further conclude that
Schoensiegel waived any argument that the trial court abused its
discretion in awarding costs, and that the absence of written
1 All
further statutory references are to the Government
Code unless otherwise stated.
2 Schoensiegel does not address the trial court’s summary
adjudication of her denial of leave claim under the CFRA. We
therefore consider that issue waived and do not address it further
herein. (Moulton Niguel Water Dist. v. Colombo (2003) 111
Cal.App.4th 1210, 1215.)
2
findings supporting the trial court’s conclusion that
Schoensiegel’s action was frivolous does not require remand.
Accordingly, we affirm.
BACKGROUND
I. Schoensiegel’s Medical Condition and Employment
with Abbott
Years before joining Abbott, Schoensiegel was diagnosed
with polyostotic fibrous dysplasia with McCune-Albright
syndrome. Individuals with this genetic condition are born with
the disease in certain bones and are subject to developing lesions
in those bones that render the bones more likely to fracture.
Schoensiegel was hired by Abbott as a medical sales
representative on June 5, 2017 by Vashti Major-Bliss (Major-
Bliss), who was then the regional sales director. Abbott hired
Robbins in July 2017, at which time she became Schoensiegel’s
manager.
Schoensiegel’s position required her to call on target
accounts, which were pediatric and obstetrician offices, in order
to get the doctors to recommend Abbott’s products.
Representatives were also supposed to manage gratis, or
samples, and distribute them to their accounts. A large part of
Schoensiegel’s job was ensuring that the sample cabinets at the
account offices were stocked with Abbott products and organized.
Additionally, “developing rapport with everyone in the office” was
a “huge aspect of the position.” Representatives were also
required to be able to lift 25 pounds.
In September 2017, Schoensiegel received a document
outlining the district expectations. As of September 2017,
Schoensiegel was aware that Robbins expected her to: (1) achieve
3
“reach” and “frequency” goals3 with respect to office calls;
(2) achieve “reach” goals with respect to gratis; (3) submit
expenses weekly; (4) communicate with Robbins on a weekly
basis; (5) log calls into Salesforce.com (Salesforce)4 after every
call; (6) conduct an average of eight to 10 office calls each day;
and (7) keep physicians’ office hours, best times/days, and office
call profiles up to date.
The district expectations also included an expectation that
sales aids were to be used on every call. Sales aids were “visual
aids” that representatives “could use as additional tools to aid in
[their] sales,” and included pamphlets, brochures, stickers, and
iPad displays. Schoensiegel testified that sales aids could not be
used over a phone call and that she did not call clients by
telephone very often “[b]ecause it was expected that we try to go
in person.”
II. Robbins Raises Issues with Schoensiegel’s
Performance
In October 2017, Robbins emailed Schoensiegel asking
whether she was logging calls every day. Schoensiegel replied
that it was an area that needed improvement and that it would
not be a problem moving forward. In December 2017, Robbins
sent an email to Schoensiegel because she had failed to submit an
3 The “reach” goal refers to whether all offices assigned to
the sales specialist were called on or sampled, and the
“frequency” goal refers to how often offices were called.
4 Salesforceis a customer relationship management system
that allows representatives and managers to input customer
account information, log and view sales calls, create and view
strategic account plans, and manage orders of samples to offices.
4
expense report, after previously failing to submit expense reports
for several months, which had resulted in late fees.
Schoensiegel first informed Robbins that she had a medical
condition in December 2017 but did not state what the condition
was or describe any of the symptoms to Robbins at that time. On
December 21, 2017, Robbins contacted the hotline for Abbott’s
employee relations department (Employee Relations) because
Schoensiegel had been “taking a lot of sick time,” which she
believed was affecting Schoensiegel’s performance. Robbins
ultimately spoke with Karen Punzalan (Punzalan), who provided
her with a list of resources. These resources included (1) Major-
Bliss, (2) Abbott’s corporate policies and human resources
website, (3) Matrix, Abbott’s dedicated leave of absence hotline,
and (4) Employee Relations.
In February 2018, Robbins sent Schoensiegel an email
stating that Schoensiegel had submitted expense reports for the
prior three weeks together, even though the reports were due on
a weekly basis, and that this was unacceptable. Robbins asked if
there was any reason why Schoensiegel could not meet that
expectation, and Schoensiegel replied that she would not make
any excuses and would “make the necessary expectations.”
III. Schoensiegel’s Request for Accommodation
In March 2018, Schoensiegel emailed Robbins a letter from
her doctor addressing her need for an SUV. The letter stated:
“At this time I [sic] It is my medical opinion that Caitlin
Schoensiegel requires a change in her company car as she has
been advised to reduce her bending and lifting. [¶] We request
that you provide her an SUV or cross over to minimize the
amount of bending she must do to get her samples out of the
trunk or back seat. This will decrease the amount of strain
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around her upper extremities and rib cage area. Please process
this request as it is medically necessary for Ms. Schoensiegel to
decrease this strain.” The letter did not contain a weight or
lifting restriction, and Schoensiegel did not request one.
Schoensiegel did not communicate any other restrictions imposed
by her doctor to Abbott.
Robbins forwarded the request to her supervisor, Major-
Bliss, the morning after receiving it. Schoensiegel received the
requested SUV in May 2018. She did not request further
accommodations while waiting for the SUV.
IV. Robbins Reaches Out to Employee Relations Again
At a sales meeting that took place between April 30 and
May 2, 2018, Schoensiegel informed Robbins for the first time
that she had a “rare bone disease” and that she might need to lie
down at the meeting. During a break, Schoensiegel laid down on
the ground. Robbins stated, “Caitlin, are you going to get up off
the floor and join us. This is ridiculous.” When Schoensiegel
asked whether she had done something wrong to upset Robbins,
Robbins replied, “No, but if you need to go—if you need to go to
the hotel room because of your medical condition you need to go
to the hotel room. You can’t be just laying [sic] on the floor
during the meeting. It’s extremely rude.” Schoensiegel testified
that everyone present had seen her lying on the ground but that
she felt that Robbins had drawn attention to her condition.
Schoensiegel also disclosed to Robbins that she had taken
half a pill of Norco, a prescription narcotic, at the sales meeting,
which was why she needed to lie down. On May 1, 2018, Robbins
opened another Employee Relations case concerning
Schoensiegel’s medical condition, stating that she believed that it
negatively affected her job performance. Robbins spoke with
6
James Curcio, an Employee Relations manager, and informed
him that Schoensiegel had disclosed a medical condition that
impacted her ability to lift, laid on the floor during the sales
meeting, and disclosed that she had taken a strong painkiller.
Robbins also stated that Schoensiegel was frequently absent and
that she believed that her performance was negatively impacted
as a result.
The case was then transferred to Sharon Larson, who also
spoke with Robbins. In their conversation, Robbins disclosed
that she was not aware of any work restrictions from
Schoensiegel’s medical provider but that they had accommodated
Schoensiegel by providing her with an SUV and that
Schoensiegel was also having samples shipped directly to account
offices. Larson explained Abbott’s obligation to provide
accommodations and advised Robbins to ask Schoensiegel what
other assistance she may need to perform the essentials of her
position. She explained that Schoensiegel should also discuss
with her medical provider whether further restrictions were
needed. Larson advised that Schoensiegel could utilize resources
such as Matrix to discuss eligibility for leave if necessary. She
also asked Robbins to remind Schoensiegel of Abbott’s drug policy
and provide her with a copy.
Following her conversation with Employee Relations,
Robbins spoke with Schoensiegel and then sent an email
summarizing their discussion. Robbins wrote that Schoensiegel
could not be under the influence of any narcotic while performing
the basic functions of her job, which included driving a vehicle
between offices. Robbins also told Schoensiegel that if she
experienced any health issues and needed additional resources,
she could contact Matrix. She also informed Schoensiegel of
7
other resources that she could contact, including Major-Bliss,
Abbott’s human relations portal, an employee assistance program
website and hotline, and Employee Relations.
Schoensiegel reached out to Employee Relations after the
sales meeting but did not respond when an Employee Relations
employee followed up with her, and the ticket was closed.
V. Robbins Places Additional Expectations on
Schoensiegel to Manage Her Performance
As of May 2018, Schoensiegel had still not met the average
of eight to 10 calls per day. The month before, Robbins had told
Schoensiegel that she wanted to have more communication with
her, explaining that she spoke with other team members more
than she spoke with Schoensiegel. On May 7, 2018, Robbins
asked Schoensiegel to begin scheduling formal weekly one-on-one
meetings, in place of their previous informal weekly
conversations. Robbins also asked Schoensiegel to prepare an
agenda for these calls and to email her a synopsis of their
discussion after the call. Additionally, Robbins asked
Schoensiegel to begin preparing “three by three” reports, which
entailed “looking at three accounts past and present and
evaluating their changes and how you could go through and make
more changes within the accounts.” Schoensiegel believed that
she was the only one of her colleagues who was required to
prepare this report but was not certain. Robbins also expected
Schoensiegel to hit 100 percent of her gratis reach within the first
two weeks of the month.
Later that month, Robbins sent an email to Schoensiegel
concerning her failure to timely complete her administrative
work, as Schoensiegel had not submitted an expense report in
two weeks. On June 11, 2018, Robbins emailed Schoensiegel,
8
stating that she had waited 10 minutes for Schoensiegel to join
their scheduled weekly call and that it was unacceptable that
Schoensiegel continued to be late or miss calls. Schoensiegel
replied that she was sick and was unable to make the call.
Robbins replied that it was unacceptable that Schoensiegel had
not informed her before the call was scheduled to begin that she
was sick that day and stated that she would reschedule the call
when Schoensiegel returned from sick time. Later that day,
Robbins sent an email to her team thanking them for going over
call and gratis reach that morning and that everyone, “except
Caitlin who is out sick today,” had informed Robbins that they
would hit their call and gratis reach.
On June 17, 2018, Robbins sent Schoensiegel an email
summarizing a conversation they had the prior week, in which
Robbins had reiterated the expectation that Schoensiegel make
eight to 10 calls a day. On June 22, 2018, Robbins emailed
Schoensiegel to inform her that she had failed to meet her gratis
reach goals for the month of May.
VI. Schoensiegel Reaches Out to Employee Relations
On June 27, 2018, Schoensiegel again reached out to
Employee Relations and requested to speak to someone regarding
Robbins. Employee Relations attempted to get in contact with
Schoensiegel two days later but was unable to reach her by phone
or to leave a message because her mailbox was full. Schoensiegel
ultimately spoke with Employee Relations on July 16, 2018. The
Employee Relations report documenting the call states that
Schoensiegel felt that Robbins’s temper had come out more
following Schoensiegel’s disclosure of her medical condition and
that she felt that Robbins could be “pushing [her] out on leave
[because] not performing as wanted.” However, the report also
9
indicated that things were “back to normal” between them.
Schoensiegel “[w]ant[ed] just to document” and would call back
“[i]f things change for the worse.”
In the meantime, Schoensiegel continued to receive emails
concerning her performance. On July 11, 2018, Major-Bliss
emailed Robbins, copying Schoensiegel, asking Robbins to work
with Schoensiegel to submit timely expense reports, as
Schoensiegel had not submitted an expense report since May 30,
2018. In August 2018, Robbins emailed Schoensiegel concerning
her failure to log calls on the date that they were made and the
fact that she had several days with only three or five calls logged.
Schoensiegel agreed that she had failed to log calls by the end of
the day on which they were made. Later that month, Robbins
emailed Schoensiegel stating that Schoensiegel was not meeting
her average calls per day and was repeatedly late to team calls.
Robbins also attached the district expectations again and asked
Schoensiegel to read them and confirm her understanding.
VII. Schoensiegel Takes Medical Leave
On September 7, 2018, Schoensiegel went on CFRA leave.
That same day, Robbins contacted Employee Relations to inquire
about putting Schoensiegel on a Performance Improvement Plan
(PIP). On September 10, 2018, Robbins received an email from
Matrix asking for confirmation that Schoensiegel’s first full day
absent had been September 7. On September 12, 2018, Robbins
spoke with Punzalan concerning Schoensiegel’s performance.
According to Punzalan’s notes from the call, Robbins informed
her that Schoensiegel was “consistently not meeting expectations
not making calls, team calls.” Robbins also reported that
Schoensiegel was falsifying calls. The notes indicate that this
allegation was based on the fact that Schoensiegel logged 16 calls
10
for July 31, when she was making only an average of 5.9 calls a
day. Though Schoensiegel did not claim that she saw all 16
offices on the date she logged the calls, Robbins considered this
falsifying records because calls were supposed to be logged
immediately after they were made. Robbins was unable to
pursue a PIP as a result of Schoensiegel’s medical leave.
While Schoensiegel was out, Robbins divided 61 of her
accounts among other representatives. While in-person calls
were required if samples were requested, Robbins testified that
the representatives covering Schoensiegel’s territory were
permitted to make calls via telephone rather than call in person
because they were still expected to make eight to 10 calls on their
own accounts.
Additionally, while Schoensiegel was out, Robbins
completed a job analysis worksheet for Matrix. In the worksheet,
Robbins described the essential functions of Schoensiegel’s job as
“Full-Time, 8 hour work days from 8–5 with some after
hour/evenings required. Deliver samples on occasion –
loading/unloading car with sample boxes, entering call records in
iPad, complete administrative work in timely fashion and balance
all budgets for territory.”
VIII. Schoensiegel Returns to Work and Again Reaches
Out to Employee Relations
Schoensiegel returned to work without restrictions on
November 1, 2018, after receiving an extension of her leave,
which originally ended on October 15. Robbins spoke with
Schoensiegel that day and sent an email summarizing their
conversation. Robbins wrote that she had reviewed the district
expectations with Schoensiegel and attached them to her email.
They had also discussed hitting 100 percent call reach and gratis
11
reach during the first two weeks of each month and the need to
enter calls into Salesforce after each call is made.
Robbins and Schoensiegel spoke again on November 5, and
Robbins sent Schoensiegel another email summarizing their
discussion. Robbins asked that Schoensiegel inform her in the
future when her requests for leave were approved and of her
expected return date. They again reviewed district expectations,
and Robbins reiterated the expectation that Schoensiegel make
an average of eight to 10 calls a day and log her calls in
Salesforce after each call.
Robbins also scheduled a field ride-along with Schoensiegel
for November 7, 2018. On November 5, Schoensiegel reached out
to Employee Relations and asked whether there was any rule
concerning the time frame in which she would be required to
have a ride-along with Robbins following a leave. Schoensiegel
spoke with Curcio, who advised her that there was no specific
rule, and indicated that Schoensiegel should discuss her concerns
with Robbins. Schoensiegel also informed him that she was
concerned that Robbins had a pattern of being overly strict with
employees when she wanted to get rid of them. Curcio
subsequently investigated these claims and found that the
employees who Schoensiegel had cited as leaving the company
were both male and female and of various ages. Some of these
employees had raised concerns about how demanding Robbins
can be, and Curcio’s report stated that “[i]t is recognized
[Robbins] can be a very demanding and direct manager but n [sic]
evidence that she is discriminating against any specific group.”
Curcio did not find Schoensiegel’s claim that Robbins was trying
to get rid of her to staff the team only with people that Robbins
had hired to be substantiated.
12
IX. Robbins Reviews Schoensiegel’s Call Log and Sees
That She Has Been Calling a Closed Office
On November 7, 2018, Robbins joined Schoensiegel on her
calls and completed a territory assessment evaluating
Schoensiegel’s performance. In the assessment, Robbins stated
that she reviewed Schoensiegel’s call log from the previous day
and saw that Schoensiegel had been logging calls on Beverly Hills
Group of Women’s Physicians (BHGWP), the office of Robbins’s
personal obstetrician, which had been closed since February
2018. The assessment indicates that Robbins told Schoensiegel
that the definition of a call is “physically going to an office and
educating the physicians and the staff on the clinical benefits of
our products” and that “logging a call on an office that is no
longer in business is falsifying a call.” Schoensiegel testified that
she had told Robbins, “We’re still supposed to call on [closed
offices] because they are still showing up on our reports as red so
they still have to be called on, but you document that it’s closed.”
Robbins replied that she had never instructed Schoensiegel to
call on closed offices and that she was not supposed to be calling
on them.
According to a report that Schoensiegel submitted on
June 14, 2018, she had last provided samples to BHGWP on
April 30, 2018, around a month after the office closed.5
5 Schoensiegel’scontention that this fact is disputed is not
well taken. Although the report itself is not in the record,
Schoensiegel’s testimony is clear that she had forwarded a report
to Robbins on June 14, 2018, that she was the person who filled
out the information concerning sampling that went in the report,
and that the report showed that BHGWP was last provided
samples on April 30, 2018.
13
X. Employee Relations Opens an Investigation
Resulting in Schoensiegel’s Termination
On November 8, 2018, Robbins reached out to Punzalan
regarding Schoensiegel’s call records, and Punzalan began an
investigation. Punzalan requested and reviewed Schoensiegel’s
account records, call records and logs in Salesforce, all
departmental expectations, and relevant emails between Robbins
and Schoensiegel. Punzalan also interviewed both Robbins and
Schoensiegel. During her call with Punzalan, Schoensiegel
acknowledged that the BHGWP office had been closed as early as
February 2018 and that she had documented the office as closed
in her logs. After speaking with Punzalan, Schoensiegel also sent
an email with additional points she wished to raise. In the email,
Schoensiegel asserted that because representatives are
specifically instructed to call offices when covering another
representative’s accounts, a phone call “definitely counts as a
sales call.”
Punzalan concluded that because Schoensiegel had logged
calls on BHGWP for at least eight months after she had reported
that the office was closed, and because Schoensiegel’s major
performance issue was a failure to maintain an average of eight
to 10 calls a day, Schoensiegel’s claims about being permitted to
log calls on closed offices were neither plausible nor credible.
Punzalan determined that Schoensiegel had violated Abbott’s
code of conduct, which provides that all books, records, and
accounts must accurately reflect the nature of the transactions
recorded and that no false or artificial entries shall be made for
any purpose. On December 11, 2018, Punzalan prepared a
worksheet that summarized her investigation and recommended
Schoensiegel’s termination. On December 12, Kevin Mason,
14
Abbott’s business human resources director, emailed Major-Bliss
and Robbins stating that he and Jerry Hutchinson, vice president
of business human resources, had approved the termination
recommendation. That same day, Schoensiegel requested
medical leave from December 13, 2018 through February 28,
2019, which was granted.
On December 13, 2018, Schoensiegel informed Robbins that
she was going out on leave. Because they had received all
approvals to terminate Schoensiegel before she filed the claim for
leave, Punzalan informed Robbins that they could proceed with
Schoensiegel’s termination.
XI. Procedural History
Schoensiegel brought her action against Abbott and
Robbins in June 2019. In her operative complaint, Schoensiegel
alleged eight causes of action: (1) unlawful discrimination based
on disability in violation of the FEHA; (2) failure to provide a
reasonable accommodation in violation of the FEHA; (3) failure to
engage in the interactive process in violation of the FEHA;
(4) retaliation in violation of the FEHA; (5) retaliation in
violation of the CFRA; (6) harassment in violation of the FEHA;
(7) failure to prevent discrimination, harassment, and retaliation
and wrongful termination in violation of public policy; and
(8) denial of CFRA leave.
In December 2020, Abbott and Robbins moved for summary
judgment. Following oral argument, the trial court granted
defendants’ motion. With respect to Schoensiegel’s
discrimination claim, the trial court found that Schoensiegel had
failed to meet her prima facie burden of showing that she was a
“qualified individual” because she was unable “to do her job in
keeping with the same level of performance expected of her
15
counterparts.” The trial court focused on Schoensiegel’s failure to
achieve an average of eight to 10 sales calls a day, finding that
“[n]ot only were these in-person visits an essential part of the job,
they in essence were the job.” The court rejected that
Schoensiegel could have performed the essential functions of her
job with a reasonable accommodation because the undisputed
record showed that she had received every accommodation she
requested. The trial court further held that the record was clear
that Abbott’s reason for terminating Schoensiegel was not her
disability but her falsification of records, and that no facts
presented supported her claim of pretext.
The trial court also concluded that no evidence supported
Schoensiegel’s remaining claims.
In March 2021, defendants filed their memorandum of
costs, seeking $20,767.73, which Schoensiegel moved to tax in
April 2021. The court granted the motion in part and denied it in
part, ruling that $3,493.50 should be deducted, resulting in a cost
award of $17,274.23. The trial court’s minute order noted that
the court had “found and determined that this lawsuit was
frivolously filed and pursued.”
DISCUSSION
I. Summary Judgment Was Properly Granted on All
Schoensiegel’s Discrimination Causes of Action
A. Standard of review
We review an order granting summary judgment de novo,
“considering all the evidence set forth in the moving and
opposition papers except that to which objections have been made
and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334 (Guz).)
16
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) “In performing
our de novo review, we must view the evidence in a light
favorable to plaintiff as the losing party [citation], liberally
construing her evidentiary submission while strictly scrutinizing
defendants’ own showing, and resolving any evidentiary doubts
or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 768.)
Summary judgment is appropriate only when “all the
papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A triable
issue of material fact exists if the evidence and inferences
therefrom would allow a reasonable juror to find the underlying
fact in favor of the party opposing summary judgment. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 856.)
In the employment discrimination context, an employee’s
evidence submitted in opposition to an employer’s motion for
summary judgment is construed liberally, yet “remains subject to
careful scrutiny.” (King v. United Parcel Service, Inc. (2007) 152
Cal.App.4th 426, 433.) The employee’s “subjective beliefs . . . do
not create a genuine issue of fact; nor do uncorroborated and self-
serving declarations.” (Ibid.)
B. Abbott was entitled to judgment as a matter of
law on Schoensiegel’s disability claim
The FEHA provides, in relevant part, that “[i]t is an
unlawful employment practice . . . [¶] . . . [f]or an employer,
because of the . . . physical disability [or] medical condition . . . of
17
any person, to refuse to hire or employ the person . . . or to bar or
to discharge the person from employment . . . .” (§ 12940, subd.
(a).) To establish a prima facie case for disparate treatment
discrimination, plaintiff must show (1) she suffers from a
disability, (2) she is otherwise qualified to do her job, with or
without accommodations, (3) she suffered an adverse employment
action, and (4) the employer harbored discriminatory intent. (See
Guz, supra, 24 Cal.4th at p. 355.)
If a prima facie case is established, the burden shifts to the
defendant to produce evidence demonstrating the adverse action
taken against the plaintiff was unrelated to his age or disability
(i.e., a nondiscriminatory reason). When an employer does so, the
burden shifts back to the plaintiff, who must demonstrate a
triable issue by identifying evidence that reasonably suggests the
adverse action is instead attributable to intentional
discrimination. (Guz, supra, 24 Cal.4th at p. 357.)
The trial court concluded that there existed no dispute of
material fact that Schoensiegel was not a qualified individual
because she was not able to do her job with or without reasonable
accommodations. The court also concluded that the record was
clear that Abbott terminated Schoensiegel for reasons unrelated
to her disability—namely, Schoensiegel’s falsification of records—
and that she presented no facts supporting a claim of pretext.
We address these points in turn.
1. Whether Schoensiegel was a “qualified individual”
To prevail on summary adjudication of a disability
discrimination claim, the employer must show there is no triable
issue of material fact that the employee was unable to perform
the essential functions of their position with or without
accommodation. (Zamora v. Security Industry Specialists, Inc.
18
(2021) 71 Cal.App.5th 1, 43.) “ ‘Essential functions’ means the
fundamental job duties of the employment position the individual
with a disability holds or desires.” (§ 12926, subd. (f).) “Evidence
of ‘essential functions’ may include the employer’s judgment,
written job descriptions, the amount of time spent on the job
performing the function, the consequences of not requiring
employees to perform the function, the terms of a collective
bargaining agreement, the work experiences of past incumbents
in the job, and the current work experience of incumbents in
similar jobs.” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th
696, 717–718.) However, “[t]he duties listed in a job
announcement are not conclusive—‘ “an employer may not turn
every condition of employment which it elects to adopt into . . . an
essential job function, merely by including it in a job
description.” ’ ” (Lui v. City and County of San Francisco (2012)
211 Cal.App.4th 962, 977–978.)
In support of her assertion that the trial court erred,
Schoensiegel argues that Abbott failed to put forth evidence of
the essential functions of Schoensiegel’s position. Abbott
submitted the district expectations, various emails in which
Robbins communicated her expectations to Schoensiegel, and
Schoensiegel’s testimony regarding what was expected of her.
The undisputed evidence shows that Schoensiegel failed to
achieve an average of eight to 10 calls a day and repeatedly failed
to log calls and submit expense reports in a timely manner.
Schoensiegel argues, however, that achieving the eight to
10 calls a day listed in the district expectations was not itself an
essential function. We consider this a closer question than the
trial court did. The trial court found that “[n]ot only were these
in-person visits an essential part of the job, they in essence were
19
the job. To argue otherwise is like contending that a door-to-door
vacuum salesperson need not go door-to-door and can just sit by
the phone and explain to those at the other end how superior his
or her product is and how it works and still be deemed to be
‘doing the job’ and ‘performing the essentials.’ ” However, there
is no evidence that Schoensiegel was incapable of performing in-
person calls, nor does Schoensiegel appear to argue that
eliminating in-person visits was a reasonable accommodation
that would have allowed her to perform the essential functions of
her position. Rather, the question is whether completing eight to
10 calls per day was an essential function of the job. We have not
seen, nor have the parties identified, a California case in which
the determination of whether a disputed material fact exists with
respect to plaintiff’s status as a “qualified individual” rested on
whether he or she could meet a specific performance metric, as
opposed to the activity or function underlying that metric.
At least one federal court has found that a triable issue
existed in a FEHA discrimination action where a plaintiff
challenged whether meeting or exceeding performance
benchmarks was an essential function of the job, even though
“ ‘meet[ing] or exceed[ing]’ ” sales goals was part of the job
description. (Smith v. BBVA Compass Bancshares, Inc. (C.D.
Cal., Mar. 31, 2021, No. EDCV191862JGBSHKx) [2021 WL
2497930 at pp. *10–11].) The district court in Smith found that
“while conducting sales may be an essential function, [the
d]efendants fail[ed] to establish that ‘meeting or exceeding’ the
sales goals at issue are essential to [the p]laintiff’s position.” (Id.
at p. *11.) Testimony from the CEO and supervisors established
that the sales goals were “ ‘stretch goals’ ” and that 65 to 70
percent of employees did not meet their goals. (Id. at p. *10.)
20
Here, Abbott has not introduced evidence concerning
whether other employees consistently met the eight to 10 call
average. Moreover, as Schoensiegel points out, a job analysis
worksheet that Robbins was asked to complete in connection with
Schoensiegel’s leave describes the essential functions of
Schoensiegel’s job as “Full-Time, 8 hour work days from 8–5 with
some after hour/evenings required. Deliver samples on occasion
– loading/unloading car with sample boxes, entering call records
in iPad, complete administrative work in timely fashion and
balance all budgets for territory.” The worksheet also identifies
cognitive and physical tasks that were essential to Schoensiegel’s
position. It does not state that achieving the eight to 10 call
average is an essential function. And while the district
expectations are relevant evidence, they cannot be relied upon as
conclusive proof that the “8-10 office calls each day/average”
listed therein was an essential function. (Cf. Lui v. City and
County of San Francisco, supra, 211 Cal.App.4th at pp. 977–978.)
Viewing the evidence in the light most favorable to the
plaintiff, as we must, we conclude there is a triable issue as to
whether completing an average of eight to 10 calls per day was
an essential function of Schoensiegel’s position.6
6 Schoensiegel also contends that, even if achieving eight to
10 calls a day was an essential function, “Abbott ignores the
multitude of accommodations that could have been provided that
would have enabled Schoensiegel to perform that function.” We
need not reach the issue of whether unrequested accommodations
may properly be considered in determining whether there is a
triable issue of fact as to whether Schoensiegel could perform the
essential functions of her position with or without
21
2. Whether Abbott and Robbins have shown
nondiscriminatory business reason for terminating
Schoensiegel
An employer may move for summary judgment against a
discrimination cause of action with evidence of a legitimate,
nondiscriminatory reason for the adverse employment action.
(Guz, supra, 24 Cal.4th at p. 357.) A legitimate,
nondiscriminatory reason is one that is unrelated to prohibited
bias and that, if true, would preclude a finding of discrimination.
(Id. at p. 358.) “While the objective soundness of an employer’s
proffered reasons supports their credibility . . . , the ultimate
issue is simply whether the employer acted with a motive to
discriminate illegally.” (Ibid., italics omitted.) The employer’s
evidence must be sufficient to allow the trier of fact to conclude
that it is more likely than not that one or more legitimate,
nondiscriminatory reasons were the sole basis for the adverse
employment action. (Kelly v. Stamps.com Inc. (2005) 135
Cal.App.4th 1088, 1097–1098.)
By presenting such evidence, the employer shifts the
burden to the plaintiff to present evidence that the employer’s
decision was motivated at least in part by prohibited
discrimination.7 (Guz, supra, 24 Cal.4th at pp. 353, 357.) The
accommodation, as we have concluded that there is a factual
dispute as to the essential functions of Schoensiegel’s position.
7 This burden-shifting test is derived from the three-stage
burden-shifting test established by the United States Supreme
Court for use at trial in cases involving claims, such as those at
issue here, of employment discrimination based on disparate
treatment, known as the McDonnell Douglas test (McDonnell
22
plaintiff’s evidence must be sufficient to support a reasonable
inference that discrimination was a substantial motivating factor
in the decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th
203, 232; Guz, at pp. 353, 357.) The stronger the employer’s
showing of a legitimate, nondiscriminatory reason, the stronger
the plaintiff’s evidence must be in order to create a reasonable
inference of a discriminatory motive. (Guz, at p. 362 & fn. 25.)
The employee’s evidence must relate to the motivation of
the decision makers and prove, by nonspeculative evidence, “an
actual causal link between prohibited motivation and
termination.” (King v. United Parcel Service, Inc., supra, 152
Cal.App.4th at pp. 433–434.) To show that an employer’s reason
for termination is pretextual, an employee “ ‘cannot simply show
that the employer’s decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent.’ ” (Hersant v. Department of
Social Services (1997) 57 Cal.App.4th 997, 1005.) “Rather it is
incumbent upon the employee to produce ‘substantial responsive
evidence’ demonstrating the existence of a material triable
controversy as to pretext or discriminatory animus on the part of
Douglas Corp. v. Green (1973) 411 U.S. 792; Guz, supra, 24
Cal.4th at pp. 354, 357.) A plaintiff has the initial burden at trial
to establish a prima facie case of employment discrimination.
(Guz, at p. 354.) On a summary judgment motion, in contrast, a
moving defendant has the initial burden to show that a cause of
action has no merit (Code Civ. Proc., § 437c, subd. (p)(2)) and
therefore has the initial burden to present evidence that its
decision was motivated solely by legitimate, nondiscriminatory
reasons. (Kelly v. Stamps.com Inc., supra, 135 Cal.App.4th at
pp. 1097–1098.)
23
the employer.” (Serri v. Santa Clara University (2014) 226
Cal.App.4th 830, 862.) To meet this burden, the employee “ ‘must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could
rationally find them “unworthy of credence,” . . . and hence infer
“that the employer did not act for . . . [the asserted] non-
discriminatory reasons.” ’ ” (Hersant, at p. 1005.)
Abbott has met its burden to produce evidence “that its
action was taken for a legitimate, nondiscriminatory reason.”
(Guz, supra, 24 Cal.4th at pp. 355–356.) Schoensiegel was
terminated for falsifying records because she continued to log
calls on BHGWP after the office had closed. There is no material
dispute that the BHGWP office closed in February 2018, that
Schoensiegel logged calls on BHGWP until November 2018, and
that she had reported having samples delivered there in April
2018, months after the office closed. After reviewing records, the
expectations for sales representatives, and interviewing Robbins
and Schoensiegel, Punzalan concluded that Schoensiegel’s
claimed reasons for continuing to log calls to BHGWP after it
closed were implausible. This evidence satisfies Abbott’s burden
to make a “ ‘sufficient showing of a legitimate reason for
discharge.’ ” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th
215, 225.)
Thus, we focus our analysis primarily on whether
Schoensiegel produced substantial responsive evidence creating a
triable question of material fact regarding whether Abbott’s cited
reasons for terminating her were pretext. Having reviewed
Schoensiegel’s evidence and arguments, we conclude that a trier
of fact could not reasonably conclude that Abbott’s stated reasons
24
for terminating Schoensiegel were implausible, inconsistent, or
baseless. Schoensiegel attempts to demonstrate falsity and
pretext by arguing that Robbins was aware that Schoensiegel had
been calling BHGWP for months because Schoensiegel had
logged her calls in Salesforce. Although Schoensiegel asserts that
“Robbins frequently ran reports and accessed [Schoensiegel’s]
[Salesforce] reports, so it is reasonable to assume that Robbins
saw this activity well before September 2018,” the only evidence
on which Schoensiegel relies in making this claim is Robbins’s
testimony that she had the ability to go into any account and see
the call history. Schoensiegel conceded that she had no evidence
to show that Robbins had actually reviewed her call reports to see
if she was calling on closed offices. According to Robbins’s
declaration and Punzalan’s summary of her discussion with
Robbins during her investigation, Robbins only learned of
Schoensiegel’s continued calls on BHGWP following the
November 7, 2018 ride-along. Robbins then reviewed reports in
Salesforce and saw that Schoensiegel had logged calls on
BHGWP on a monthly basis after it had closed.
Schoensiegel also asserts that the reason for her
termination was not believable because Robbins instructed
Schoensiegel’s colleagues to call on BHGWP while Schoensiegel
was out on leave, even though she knew or should have known
BHGWP had closed. However, Robbins’s testimony and email
show that Robbins took an Excel list of Schoensiegel’s accounts,
highlighted groups of 10 or so rows different colors, assigned the
colors to Schoensiegel’s colleagues, and asked them to call the
accounts in their color group. BHGWP was one of the 61
accounts assigned to other sales representatives during
Schoensiegel’s leave. Robbins does not dispute that she knew
25
that BHGWP was closed at that time, but testified that
highlighting BHGWP was an oversight, as she had “hundreds of
lists” and was not looking at every name on those lists.
Schoensiegel presents no evidence to support that this was
anything more than an oversight.
Schoensiegel further claims that her termination in
November 2018 was pretextual because Robbins and Punzalan
had discussed her practice of calling on closed offices in
September 2018 but chose not to terminate her at that time.
Robbins testified that she believed Schoensiegel was falsifying
records at that time because she logged 16 calls in one day.
While Punzalan’s testimony on the reason for falsification was
unclear, Punzalan’s notes state that Schoensiegel logged “16 calls
in for 7/31” and she wrote “falsifying” immediately thereafter.
Regardless of the basis for the allegation of falsification in
September 2018, Punzalan testified that they “couldn’t look into
it further because [Schoensiegel] went out on a leave of absence.”
This is consistent with Robbins’s testimony and the fact that
Schoensiegel went on leave shortly thereafter. Thus, the
undisputed evidence does not support an inference that Punzalan
and Robbins decided to overlook the falsification and performance
issues discussed in September; instead, it indicates that no action
could be taken until Schoensiegel’s medical leave ended.
Finally, Schoensiegel claims that her termination was
pretextual because Abbott decided to terminate her only after she
requested her second leave of absence. However, Punzalan
recommended terminating Schoensiegel on December 11, the day
before Schoensiegel requested medical leave. It is also
uncontested that Schoensiegel informed Robbins that she was
going out on leave for the first time on December 13. The
26
recommendation to terminate Schoensiegel was approved on
December 12. Moreover, the timing of the decision alone is
insufficient to create a material issue of disputed fact. “[A]
disabled employee has no greater prerogative to compromise his
integrity than any other employee,” and the “mere fact that [the
employer] found [the] plaintiff had breached its integrity policy
shortly after returning to work is insufficient to raise an
inference that [the employee’s disability] prompted his
discharge.” (King v. United Parcel Service, Inc., supra, 152
Cal.App.4th at p. 436.)
Without some evidence beyond mere conjecture connecting
Abbott’s decision to terminate Schoensiegel to her disability,
Schoensiegel has failed to create a triable question of material
fact that Abbott’s reasoning was pretextual.
C. Abbott was entitled to judgment as a matter of
law on Schoensiegel’s accommodation or good
faith interactive process claims
The elements of a cause of action for failure to
accommodate a disability under the FEHA are (1) the plaintiff
has a disability under the FEHA or was regarded as having a
disability, (2) the plaintiff is qualified to perform the essential
functions of the job with or without reasonable accommodation,
and (3) the employer failed to reasonably accommodate the
plaintiff’s disability. (Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1009–1010.) Having determined above that
a factual dispute exists as to the essential functions of
Schoensiegel’s position, we focus our analysis on the third
element.
“ ‘Two principles underlie a cause of action for failure to
provide a reasonable accommodation. First, the employee must
27
request an accommodation. [Citation.] Second, the parties must
engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the
failure rests with the party who failed to participate in good faith.
[Citation.]’ [Citations.]” (Avila v. Continental Airlines, Inc.
(2008) 165 Cal.App.4th 1237, 1252.) “Generally, ‘ “[t]he employee
bears the burden of giving the employer notice of the disability.
[Citation.] This notice then triggers the employer’s burden to
take ‘positive steps’ to accommodate the employee’s
limitations. . . . [¶] . . . The employee, of course, retains a duty
to cooperate with the employer’s efforts by explaining [his or] her
disability and qualifications. [Citation.] Reasonable
accommodation thus envisions an exchange between employer
and employee where each seeks and shares information to
achieve the best match between the [employee’s] capabilities and
available positions.” [Citation.]’ [Citation.]” (Raine v. City of
Burbank (2006) 135 Cal.App.4th 1215, 1222.)
“ ‘ “ ‘[T]he employee can’t expect the employer to read his
mind and know he secretly wanted a particular accommodation
and sue the employer for not providing it.’ ” ’ ” (Featherstone v.
Southern California Permanente Medical Group (2017) 10
Cal.App.5th 1150, 1167.) “ ‘ “Where the disability, resulting
limitations, and necessary reasonable accommodations, are not
open, obvious, and apparent to the employer,” ’ the employee
bears the burden ‘ “to specifically identify the disability and
resulting limitations, and to suggest the reasonable
accommodations.” ’ [Citation.]” (Doe v. Department of
Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 738–739,
italics omitted.)
28
“While a claim of failure to accommodate [under section
12940, subdivision (m)] is independent of a cause of action for
failure to engage in an interactive dialogue [under section 12940,
subdivision (n)], each necessarily implicates the other.” (Gelfo v.
Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)
“Although it is the employee’s burden to initiate the process, no
magic words are necessary, and the obligation arises once the
employer becomes aware of the need to consider an
accommodation. Each party must participate in good faith,
undertake reasonable efforts to communicate its concerns, and
make available to the other information which is available, or
more accessible, to one party. Liability hinges on the objective
circumstances surrounding the parties’ breakdown in
communication, and responsibility for the breakdown lies with
the party who fails to participate in good faith.” (Id. at p. 62,
fn. 22.)
There is no dispute that Abbott accommodated
Schoensiegel when she provided a note from her doctor
requesting that she be given an SUV as her company car.
However, Schoensiegel argues that, during the period she waited
for the SUV, Robbins “refused to engage in any interactive
process with [Schoensiegel] to determine whether other types
accommodations could be made.” However, Schoensiegel fails to
identify any evidence showing that she attempted to discuss
further accommodations during this period and was rebuffed. In
fact, Schoensiegel agreed that the requests for vehicle
accommodation, sick days, and leave were the only requests she
made with regard to her medical condition, and that every
request she made for time off from work relating to her medical
condition was granted. Schoensiegel also testified that she did
29
not communicate any other restrictions given to her by her doctor
to Abbott. “ ‘ “It is an employee’s responsibility to understand his
or her own physical or mental condition well enough to present
the employer at the earliest opportunity with a concise list of
restrictions which must be met to accommodate the employee.” ’
[Citation.]” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327,
349, italics omitted.) In the absence of any request from
Schoensiegel for additional accommodation based on her
restrictions—some of which she elected not to share—there is no
evidence to support that Abbott failed to meet its duty to
accommodate or to engage in an interactive process during this
period.
Schoensiegel also argues that Robbins failed to engage in
an interactive discussion in connection with the April and May
2018 sales meeting. However, it is undisputed that Robbins
spoke to Schoensiegel following the sales meeting and emailed
her a list of resources that included, but were not limited to, the
Matrix absence hotline. Schoensiegel did not request any further
accommodation other than leave, which, as noted, was granted.
Schoensiegel further contends that her request for leave in
December 2018 was not accommodated. However, the record
shows that Schoensiegel was approved for CFRA leave in
December 2018, and there is no indication in the record that she
would not have been allowed to take that leave but for the fact
that Abbott had decided to terminate her. The purpose of a
reasonable accommodation is to modify workplace conditions so
that the employee may continue to perform the essential
functions of the job held. (Cf. Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 975.) That purpose is
nullified when the employer properly decides to terminate an
30
employee before an accommodation is requested. It would be
unreasonable to subject Abbott to liability for failing to provide
Schoensiegel with an accommodation after it decided to
terminate her employment, merely because Schoensiegel
requested the accommodation before she learned of the decision.
Summary judgment was therefore proper on Schoensiegel’s
failure to accommodate claim.
D. Abbott was entitled to judgment as a matter of
law on Schoensiegel’s FEHA and CFRA
retaliation claims
The FEHA makes it unlawful “[f]or any employer . . . to
discharge . . . or otherwise discriminate against any person
because the person has opposed any practices forbidden under
this part . . . .” (§ 12940, subd. (h).) “[T]o establish a prima facie
case of retaliation under the FEHA, a plaintiff must show (1) he
or she engaged in a ‘protected activity,’ (2) the employer subjected
the employee to an adverse employment action, and (3) a causal
link existed between the protected activity and the employer's
action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1042; see § 12940, subd. (h).) Similarly, the elements of a cause
of action for retaliation in violation of the CFRA are: “ ‘(1) the
defendant was an employer covered by CFRA; (2) the plaintiff
was an employee eligible to take CFRA leave; (3) the plaintiff
exercised her right to take leave for a qualifying CFRA purpose;
and (4) the plaintiff suffered an adverse employment action, such
as termination, fine, or suspension, because of her exercise of her
right to CFRA leave.’ ” (Faust v. California Portland Cement Co.
(2007) 150 Cal.App.4th 864, 885.)
“Once an employee establishes a prima facie case, the
employer is required to offer a legitimate, nonretaliatory reason
31
for the adverse employment action. [Citation.] If the employer
produces a legitimate reason for the adverse employment action,
the presumption of retaliation ‘ “ ‘drops out of the picture,’ ” ’ and
the burden shifts back to the employee to prove intentional
retaliation.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at
p. 1042; Faust v. California Portland Cement Co., supra, 150
Cal.App.4th at p. 885.)
“ ‘ “ ‘If the employer presents admissible evidence either
that one or more of [the] plaintiff’s prima facie elements is
lacking, or that the adverse employment action was based on
legitimate, nondiscriminatory factors, the employer will be
entitled to summary judgment unless the plaintiff produces
admissible evidence which raises a triable issue of fact material
to the defendant’s showing.’ ” ’ ” (Sandell v. Taylor-Listug, Inc.
(2010) 188 Cal.App.4th 297, 309, italics omitted.)
It is undisputed that the first two elements of a prima facie
FEHA retaliation case and the first three elements of a CFRA
retaliation case are satisfied here. Schoensiegel asserts that
Abbott must negate the element requiring a causal connection
between her termination and her requests for accommodation
and leave, but fails to address any of the arguments Abbott made
on summary judgment concerning a lack of causation. Although
Abbott bore the burden on summary judgment of showing that an
element of the prima facie case was lacking, “[a]ppealed
judgments and orders are presumed correct, and error must be
affirmatively shown.” (Hernandez v. California Hospital Medical
Center (2000) 78 Cal.App.4th 498, 502; see Arnold v. Dignity
Health (2020) 53 Cal.App.5th 412, 423 [“plaintiff bears the
burden of establishing error on appeal, even though defendants
had the burden of proving their right to summary judgment
32
before the trial court”].) Even where our standard of review is de
novo, failure to address an issue constitutes abandonment. (Wall
Street Network, Ltd. v. New York Times Co. (2008) 164
Cal.App.4th 1171, 1177 [affirming summary judgment with
respect to certain claims where the appellant’s briefs failed to
challenge the independent grounds supporting the trial court’s
grant of summary adjudication on such claims].) Schoensiegel
has forfeited the contention that a prima facie case of retaliation
exists by failing to make any meaningful argument regarding
causation in her opening brief.
Schoensiegel further asserts that “because [she] presented
sufficient evidence of pretext, the [t]rial [c]ourt’s order should be
granted as to [Schoensiegel’s] causes of action for retaliation.”
However, as discussed above in connection with Schoensiegel’s
discrimination claim, Abbott identified a legitimate, non-
retaliatory basis for Schoensiegel’s termination. The burden
therefore shifts back to Schoensiegel, who has failed to identify
substantial evidence that would permit a jury to find she was
fired in retaliation for her requests for accommodation or leave.
Schoensiegel’s retaliation claims therefore fail as a matter of law.
E. Abbott and Robbins were entitled to judgment
as a matter of law on Schoensiegel’s disability
harassment claim
The FEHA prohibits an employer from harassing an
employee “because of . . . physical disability.” (§ 12940,
subd. (j)(1).) A supervisor may also be subject to personal
liability for harassment. (§ 12940, subd. (j)(3).) Schoensiegel
brings a harassment claim against both Abbott and Robbins. A
“claim of disability harassment requires a showing ‘ “that the
conduct complained of was severe enough or sufficiently
33
pervasive to alter the conditions of employment and create a
work environment that qualifies as hostile or abusive to
employees because of their [disability].” ’ [Citation.] . . . Since
‘there is no possible justification for harassment in the
workplace,’ an employer cannot offer a legitimate
nondiscriminatory reason for it.” (Cornell v. Berkeley Tennis
Club (2017) 18 Cal.App.5th 908, 927.)
“Actionable harassment consists of more than ‘annoying or
“merely offensive” comments in the workplace,’ and it cannot be
‘occasional, isolated, sporadic, or trivial; rather, the employee
must show a concerted pattern of harassment of a repeated,
routine, or a generalized nature.’ [Citation.]” (Cornell v. Berkeley
Tennis Club, supra, 18 Cal.App.5th at p. 940.) “[H]arassment
consists of conduct outside the scope of necessary job
performance, conduct presumably engaged in for personal
gratification, because of meanness or bigotry, or for other
personal motives. Harassment is not conduct of a type necessary
for management of the employer’s business or performance of the
supervisory employee’s job.” (Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 63.) “[T]he Legislature intended that
commonly necessary personnel management actions such as
hiring and firing, job or project assignments, office or work
station assignments, promotion or demotion, performance
evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and
who will not attend meetings, deciding who will be laid off, and
the like, do not come within the meaning of harassment.” (Id. at
pp. 64–65.)
“Whether the harassment is sufficiently severe or pervasive
to create a hostile work environment ‘must be assessed from the
34
“perspective of a reasonable person belonging to [the same
protected class as] the plaintiff.” ’ [Citation.] In making this
assessment, we consider several factors, including ‘ “the
frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.” ’ [Citation.]” (Cornell v. Berkeley
Tennis Club, supra, 18 Cal.App.5th at p. 940.)
Schoensiegel lists several actions taken by Robbins that she
asserts constitute harassment. For example, Schoensiegel
asserts that Robbins “rated [Schoensiegel] lower on her annual
review in an area where [Schoensiegel] had actually met the
expectations,” but fails to direct the court to the relevant
evidence. Abbott argues that the 2017 annual review at issue
preceded Schoensiegel’s disclosure of her disability and thus
cannot support a claim of harassment. We agree. Although
Schoensiegel disclosed that she had a “medical condition” in
December 2017, she did not communicate any of her symptoms or
the nature of the condition. “ ‘ “Vague or conclusory statements
revealing an unspecified incapacity are not sufficient to put an
employer on notice of its obligations under the [FEHA].” ’ ” (Avila
v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1248.)
Thus, any claim that Schoensiegel was harassed because of her
disability in December 2017 is baseless as a matter of law.
Schoensiegel further relies on the fact that, in May 2018,
shortly after Robbins had reached out to Employee Relations
concerning Schoensiegel’s condition, Robbins gave Schoensiegel
additional responsibilities, including scheduling a weekly one-on-
one call between them, preparing an agenda and summary, and
generating a “three by three report.” Although we accept
35
Schoensiegel’s characterization of this evidence—that Robbins
was “micromanaging” Schoensiegel by imposing these
requirements—the “job or project assignments” described were
nevertheless “of a type necessary for management of the
employer’s business or performance of the supervisory employee’s
job” that do not amount to actionable harassment. (Janken v.
GM Hughes Electronics, supra, 46 Cal.App.4th at pp. 63–65.)
Schoensiegel admitted that a possible explanation for the
additional requirements imposed on her included that Robbins
was required to manage her performance because she was
missing her metrics. It is undisputed that, beginning in October
2017, Schoensiegel was unable to meet expectations in several
areas, including meeting goals for her average number of calls,
logging calls immediately after making them, and submitting
expense reports on a weekly basis. It is also uncontested that
Robbins told Schoensiegel in April 2018 that she spoke more
frequently with Schoensiegel’s colleagues than with Schoensiegel
and that she wanted to have more communication with
Schoensiegel. It is undisputed that Robbins informed
Schoensiegel she had requested formal weekly calls to help
Schoensiegel succeed. With respect to the additional “three by
three” report, Schoensiegel testified that she believed Robbins
requested these reports “for me to see identifiable ways to
improve or how I have improved.”
Although “some official employment actions done in
furtherance of a supervisor’s managerial role can also have a
secondary effect of communicating a hostile message,” such
actions must “establish a widespread pattern of bias.” (Roby v.
McKesson Corp. (2009) 47 Cal.4th 686, 709.) While the evidence
supports that Robbins was “a very demanding and direct
36
manager,” there is no evidence of a pattern of bias in Robbins’s
exercise of her supervisory role. Schoensiegel does not provide
any evidence that she was the only sales representative subject to
the expectations imposed in May 2018. Moreover, in the course
of investigating Schoensiegel’s concerns about Robbins, James
Curcio found that several former employees had stated that
Robbins was “strict and demanding” and could be “harsh.” There
is no indication in the record that all of these former employees
belonged to any specific protected group.
Schoensiegel also relies on three comments made by
Robbins in support of her harassment claim. First, Schoensiegel
testified that when she was lying on the floor at the sales meeting
in late April/early May 2018, Robbins stated “[t]his is ridiculous”
and told Schoensiegel, “if you need to go to the hotel room
because of your medical condition you need to go to the hotel
room. You can’t be just laying [sic] on the floor during the
meeting. It’s extremely rude.” Second, in a June 2018 email,
Robbins thanked her team for joining a call and stated that “All
of you, except Caitlin who is out sick today, have shared with me
that you will hit your call reach, gratis reach, and complete your
pediasure inservices by Friday.” Third, Schoensiegel claims that
Robbins “berated” Schoensiegel for missing a call due to her
disability and called it “unacceptable.” Schoensiegel fails to
direct the court to the portion of the record in which this final
comment was made. When viewed in context, the relevant
emails show that, after waiting 10 minutes for Schoensiegel to
join a call, Robbins sent her an email stating that it was
“unacceptable that you continue to be late or miss our calls.”
Schoensiegel then informed Robbins that she was sick and would
not be joining the call. Robbins responded that this was
37
unacceptable and that Schoensiegel should have notified Robbins
that she was sick before the call.
“ ‘[W]hen the harassing conduct is not severe in the
extreme, more than a few isolated incidents must have occurred
to prove a claim based on working conditions.’ ” (Cornell v.
Berkeley Tennis Club, supra, 18 Cal.App.5th at p. 940 [“[f]our
comments over several months” did not establish pattern of
routine harassment creating hostile work environment where
“comments were not extreme”].) While it may have upset
Schoensiegel to be told that she was being ridiculous, or to have
her absence noted in an email to her colleagues, these statements
were neither pervasive nor explicitly derogatory or threatening.
Moreover, Robbins’s statement that it was unacceptable for
Schoensiegel to miss calls due to illness without letting her know
ahead of time is a “necessary personnel management action[ ]”
that “do[es] not come within the meaning of harassment.”
(Janken v. GM Hughes Electronics, supra, 46 Cal.App.4th at
pp. 64–65.) Even accepting that the email may have contained
an implicit message that Robbins was also irritated with
Schoensiegel’s absences, these statements, taken together, were
neither severe nor pervasive. The FEHA is not “a civility code.”
(Holmes v. Petrovich Development Co., LLC (2011) 191
Cal.App.4th 1047, 1061.) Occasional comments made by a
supervisor expressing frustration with an employee’s disability
are objectively insufficient to establish harassment. (See id. at
pp. 1060, 1061 [summary judgment of harassment claim
warranted despite emails containing “some critical comments due
to the stress of being a small business owner who must
accommodate a pregnant woman’s right to maternity leave”].)
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Finally, Schoensiegel asserts (without reference to the
record) that she felt belittled by Robbins and that Robbins
twisted her words. We consider whether a reasonable person
with a disability subjected to the behaviors attributed to Robbins
would consider them to be disparaging or derogatory toward her
disabled status considering all the workplace circumstances.
Schoensiegel testified that Robbins never made any disparaging
remarks about her illness and that she was not aware of Robbins
making such remarks to anyone else. Rather, Robbins made her
“feel stupid or not intelligent” by expressing frustration that
Schoensiegel did not know or remember something that
Schoensiegel believed they had not previously discussed. Robbins
did not ever call Schoensiegel stupid. With respect to “twisting
her words,” Schoensiegel testified that in her one-on-ones and
recaps of those discussions, Robbins “would bring up things that
we hadn’t actually discussed.” Schoensiegel believed that this
was “to make [her] look bad,” but she also agreed that she was
missing metrics and doing the things that Robbins described in
the emails. Notably, Schoensiegel testified that she “wasn’t the
only one that felt this way” about Robbins, suggesting that these
behaviors were not motivated by her disability, but inherent to
Robbins’s management. Indeed, as discussed above, James
Curcio’s investigation determined that several former employees
had complained about Robbins’s communication style.
Schoensiegel has failed to create triable issues of material fact as
to whether these behaviors were motivated by Schoensiegel’s
disability.
39
F. Abbott was entitled to judgment as a matter of
law on Schoensiegel’s derivative claims
Section 12940, subdivision (k) provides that it is an
unlawful employment practice “[f]or an employer . . . to fail to
take all reasonable steps necessary to prevent discrimination and
harassment from occurring.” In order to maintain a claim for
failure to prevent discrimination, harassment, or retaliation,
there must have been an act of discrimination, harassment, or
retaliation. “ ‘[T]here’s no logic that says an employee who has
not been discriminated against can sue an employer for not
preventing discrimination that didn’t happen, for not having a
policy to prevent discrimination when no discrimination
occurred . . . .’ Employers should not be held liable to employees
for failure to take necessary steps to prevent such conduct, except
where the actions took place and were not prevented.” (Trujillo
v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289; see
also Featherstone v. Southern California Permanente Medical
Group, supra, 10 Cal.App.5th at p. 1166.)
On appeal, Schoensiegel does not dispute that her failure to
prevent discrimination, harassment, or retaliation claims are
entirely derivative of her disability discrimination, harassment,
and retaliation claims. Because Schoensiegel cannot establish
the underlying causes of action, her derivative claims must also
fail.
II. Motion to Tax Costs
We review the trial court’s granting costs to Abbott and
Robbins under the deferential abuse of discretion standard of
review. (Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, 989;
Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 52.) When
we review for an abuse of discretion, a “showing on appeal is
40
wholly insufficient if it presents a state of facts, a consideration of
which, for the purpose of judicial action, merely affords an
opportunity for a difference of opinion. An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge. To be entitled to relief on appeal
from the result of an alleged abuse of discretion it must clearly
appear that the injury resulting from such a wrong is sufficiently
grave to amount to a manifest miscarriage of justice.” (Brown v.
Newby (1940) 39 Cal.App.2d 615, 618.)
Under section 12965, subdivision (b), the trial court has
discretion to award attorney fees and costs to a prevailing
defendant in a FEHA action if “the court finds the action was
frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.”
(Williams v. Chino Valley Independent Fire Dist. (2015) 61
Cal.4th 97, 115 [concluding rule that prevailing defendant may
recover attorney fees and costs only if the plaintiff's “action was
objectively groundless” articulated in Christiansburg Garment
Co. v. EEOC (1978) 434 U.S. 412, 421-422 applicable to costs].)
Schoensiegel asserts in summary fashion that the trial
court’s award of costs should be reversed, as it was an abuse of
discretion because she had an objective basis for believing her
case had merit. Schoensiegel does not develop her claim by
reference to the record or any legal argument, apart from citing
Williams v. Chino Valley Independent Fire Dist., supra, 61
Cal.4th 97. As we have stated, the lower court’s order is
presumed correct (Hernandez v. California Hospital Medical
Center, supra, 78 Cal.App.4th at p. 502), and failure to address
an issue constitutes abandonment. (Wall Street Network, Ltd. v.
New York Times Co., supra, 164 Cal.App.4th at p. 1177.) We are
41
not bound to attempt to piece together cogent arguments from
bare assertions of abuse of discretion. (See Cahill v. San Diego
Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We find
that Schoensiegel has waived the argument that the trial court
abused its discretion in awarding defendants their costs.
In the alternative, Schoensiegel urges us to remand on the
ground that the trial court did not issue any written predicate
findings before awarding costs, citing Rosenman v. Christensen,
Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91
Cal.App.4th 859 (Rosenman). In Rosenman, Division Seven of
this district imposed a “nonwaivable” requirement that a trial
court make written findings that a plaintiff's action was frivolous,
unreasonable or groundless in all FEHA cases where attorney
fees are awarded to a defendant. (Id. at p. 868.) The court
agreed with the argument made by amici curiae that a court
should “detail[ ] the findings which support any award of
attorney fees to defendants in civil rights cases,” (id. at p. 867)
thus “ensuring fees are awarded only in the rare cases envisioned
by the Supreme Court in Christiansburg, so as to avoid
discouraging litigants from bringing meritorious but not airtight
claims to court.” (Id. at p. 868.) The court stated that “where the
required findings are not made by the trial court, the matter
must be reversed and remanded for findings, unless the appellate
court determines no such findings reasonably could be made from
the record.” (Ibid., fn. omitted.)
In its minute order, the trial court in this case “found and
determined that this lawsuit was frivolously filed and pursued,”
but did not describe any evidentiary support for its conclusion.
The trial court did not detail its findings with respect to the
Christianburg criteria. Further, this is not a case in which a
42
finding of frivolousness could not reasonably be made from the
record.
However, Rosenman’s nonwaivable requirement of written
findings is limited to an award of attorney fees (Rosenman,
supra, 91 Cal.App.4th at p. 868), and defendants in this case
moved to recover only their statutory costs. Moreover, at least
one court has found that Rosenman’s command that reversal is
automatically required unless no award could possibly be
justified runs afoul of article VI, section 13 of the California
Constitution and Code of Civil Procedure section 475, which
provides that the Court of Appeal cannot reverse a judgment in
the absence of a showing of prejudice. (Robert v. Stanford
University (2014) 224 Cal.App.4th 67, 72.) In the absence of
written findings, the Robert court found that it is appropriate to
“examine the record to determine whether it nevertheless
discloses that the court applied the appropriate standards. If the
record affirmatively indicates that the court applied the correct
standards, the court’s failure to put its findings into writing does
not itself justify reversal.” (Ibid.) In Robert, the Sixth District
found that the trial court’s oral findings demonstrated that the
court applied the correct standards and concluded that the court’s
failure to put its findings in writing was not prejudicial and did
not itself justify reversal. (Ibid.)
Without taking a position on Rosenman’s requirement of
reversal in the absence of written findings with respect to an
award of attorney fees under the FEHA, we decline to extend
that rule in this case to an award of only statutory costs, and we
employ the approach utilized in Robert v. Stanford University,
supra, 224 Cal.App.4th 67. Here, Schoensiegel did not provide us
with a transcript of the hearing on the motion to tax costs. It is
43
the appellant’s obligation to show “reversible error by an
adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.)
We cannot presume, in the absence of a record of the hearing,
that the court failed to apply the appropriate criteria or make the
appropriate findings, particularly given that the trial court’s
written conclusion that Schoensiegel’s action was frivolous
supports that it considered the criteria set forth in Williams v.
Chino Valley Independent Fire Dist., supra, 61 Cal.4th 97.
Furthermore, the trial court’s summary judgment order
contains written findings that support its conclusion in the order
on costs that the action was frivolous. For example, the trial
court found that there were “no facts actually presented which
would or do support the plaintiff’s claims of pretext at all,” “that
there was no failure to engage in an interactive process and no
facts produced that this had occurred at all,” and “that there was
no harassment and not even an adequate allegation of facts in
the [first amended complaint] to support a ‘harassment’ claim
under FEHA laws and other discrimination theories.” A
“complete absence of evidence,” as the trial court found here,
supports the conclusion that an action was frivolous,
unreasonable, or groundless and that an award of fees and costs
under the FEHA was not an abuse of discretion. (See Robert v.
Stanford University, supra, 224 Cal.App.4th at p. 73; Villanueva
v. City of Colton (2008) 160 Cal.App.4th 1188, 1200–1201.)
We therefore conclude that remand is not warranted.
44
DISPOSITION
The judgment and order of the trial court are affirmed.
Abbott and Robbins are awarded their costs on appeal.
NOT TO BE PUBLISHED
MORI, J.*
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
45