Lopez v. La Casa de Las Madres

Facts

The statutory framework. The Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) attacks pregnancy discrimination through several overlapping provisions. Discrimination because a person “is pregnant, has given birth, is breastfeeding, or has a related medical condition is a form of sex discrimination, prohibited by section 12940(a),” and pregnancy-related depression is a form of disability discrimination, also prohibited by that subdivision. (Lopez, supra, 89 Cal.App.5th at p. 378; see Gov. Code, § 12926, subds. (r), (j).) Government Code section 12945 — the Pregnancy Disability Leave Law (PDLL) — “supplements provisions of sections 12926 and 12940 that apply to pregnancy-related conditions by delineating additional employment practices that are unlawful ‘unless based upon a bona fide occupational qualification.’” (Lopez, at p. 378, quoting § 12945, subd. (a).)

Section 12945 “addresses two distinct protections.” (Lopez, supra, 89 Cal.App.5th at p. 378.) First, it is unlawful “to refuse to allow an employee disabled by a condition related to pregnancy to take a leave of absence for a reasonable period, not to exceed four months” (§ 12945, subd. (a)(1)), and unlawful during that leave to refuse to maintain the employee’s insurance coverage (§ 12945, subd. (a)(2)). (Lopez, at pp. 378–379.) Second, the statute requires reasonable accommodation in specified situations. The provision at the center of this case, section 12945, subdivision (a)(3)(A), makes it unlawful “‘[f]or an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider.’” (Lopez, at p. 375.) A companion subdivision separately makes it unlawful to refuse to transfer a pregnant employee temporarily to a less strenuous position where the transfer “‘can be reasonably accommodated.’” (Id. at p. 379, quoting § 12945, subd. (a)(3)(B)–(C).) Section 12940, subdivision (m), by contrast, makes it unlawful “to fail ‘to make reasonable accommodation for the known physical or mental disability’” of an employee. (Lopez, at p. 377.)

A savings clause frames the whole. Section 12945, subdivision (b), provides that the section “‘shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part, including subdivision (a) of Section 12940.’” (Lopez, supra, 89 Cal.App.5th at p. 379.)

The employment. La Casa de Las Madres is a nonprofit that serves women and children who are victims of domestic violence. (Lopez, supra, 89 Cal.App.5th at p. 370.) Gabriela Lopez worked for La Casa at various times between 2002 and 2017, and in December 2014 was hired as shelter manager at La Casa’s confidential residential shelter. (Id. at pp. 370, 372.) She supervised roughly ten of La Casa’s thirty-two employees, was expected to work thirty hours a week at the shelter plus ten on administrative tasks, was “always … on call,” and was responsible for covering shifts when a subordinate was absent. (Id. at p. 372.) The shelter manager “handles emergency situations and is responsible for delivering ‘domestic-violence services 24/7.’” (Ibid.) Because residents are escaping violence, the location is confidential and the residents “themselves can also be dangerous”: some experience “‘murder/suicidal ideations,’” and some bring firearms to the shelter. (Ibid.) La Casa’s witnesses confirmed the work’s stressful nature; Lopez testified she “‘did not generally find the work to be stressful.’” (Ibid.)

The pregnancy, leave, and the accommodation request. La Casa learned in late February 2016 that Lopez was pregnant, and its human resources manager advised her of her rights, including four months of pregnancy-disability leave and a concurrent twelve-week baby-bonding leave. (Lopez, supra, 89 Cal.App.5th at p. 372.) Lopez began leave on August 16, 2016 on her doctor’s advice, gave birth to a daughter in September, and obtained a series of extensions through her doctor. (Id. at pp. 370, 372–373.) By December 17, 2016 she “‘had received the full 4 months of [pregnancy-disability leave] required by statute,’” including the concurrent baby-bonding leave. (Id. at p. 373.) On December 20, La Casa notified Lopez it would treat a Kaiser work-status report as a request for accommodation under FEHA. (Ibid.)

Over the next month Lopez submitted three “Instructions to Health Care Provider” forms signed by Ms. Campion, a Kaiser social worker specializing in mental health. (Lopez, supra, 89 Cal.App.5th at p. 373.) The January 3, 2017 form reported a “‘moderate-severe’” disability that limited Lopez from activities that are “‘stress producing or require sustained attention,’ and those that ‘require the making of important or significant decisions,’” and proposed two modifications: time off for continued mental-health treatment, and “‘flexible/shortened workdays’” if Lopez found the work “‘overwhelming and triggering of severe anxiety/depressive symptoms.’” (Ibid.) Campion stated it was “‘unknown’” how long the limitations would last. (Ibid.)

La Casa determined it could provide time off for therapy but “could not function indefinitely without a shelter manager,” a job that could not be “‘performed without making significant decisions and facing stressful situations at unpredictable times.’” (Lopez, supra, 89 Cal.App.5th at pp. 373–374.) On January 6, 2017 it advised Lopez it could not accommodate Campion’s limitations, but offered to extend her leave and, on return, to assign her temporarily to a flexible-hours “Data Entry Specialist position” at lower pay — an arrangement three of Lopez’s subordinates had previously accepted while on disability leave. (Id. at p. 374.) Lopez declined, saying she was able to return as shelter manager. (Ibid.) She submitted further Campion forms, but the later forms were incomplete and, because Lopez’s insurance had lapsed, Campion could no longer assess the severity of the disability or Lopez’s ability to work. (Id. at pp. 374–375.) Lopez then stopped responding to La Casa’s repeated inquiries. (Id. at p. 375.) On February 6, 2017, La Casa wrote that it considered Lopez to have “‘elected to discontinue her employment’”; that day Lopez left her keys with La Casa’s HR manager. (Ibid.) No one at La Casa told Lopez she was terminated, and Lopez never submitted a resignation. (Ibid.)

Procedural history

Lopez’s operative first amended complaint pleaded nine causes of action, the first six under FEHA — pregnancy discrimination, harassment, failure to prevent discrimination and harassment, disability discrimination, failure to accommodate, and failure to engage in the interactive process — plus wrongful termination, intentional infliction of emotional distress, and preventing future employment by misrepresentation. (Lopez, supra, 89 Cal.App.5th at pp. 371–372.) After summary adjudication disposed of several claims not at issue on appeal, a March–April 2021 bench trial resolved the remainder: pregnancy discrimination, failure to prevent discrimination, disability discrimination, failure to accommodate a disability, and wrongful termination. (Id. at p. 372.)

At trial Lopez rested her pregnancy-discrimination claim on section 12945, subdivision (a)(3)(A). (Lopez, supra, 89 Cal.App.5th at p. 375.) The trial court found she failed to establish three elements it considered essential: that she “‘had a condition related to pregnancy,’” that she “‘could perform the essential functions of her job,’” and that she “‘was denied a reasonable accommodation’” requested on a health care provider’s advice. (Ibid.) The court found that no medical professional testified, no medical records were offered, the Campion forms “did not contain a diagnosis” and “‘do not so much as mention pregnancy,’” and Lopez was impeached with evidence she was depressed and stressed before her leave began. (Id. at pp. 375–376.) Even assuming a pregnancy-related condition, the court found the shelter-manager job “‘was inherently stressful and required quick decisions that sometimes meant the difference between life and death,’” and that Lopez’s contrary testimony was not credible. (Id. at p. 376.) The court also found La Casa offered a reasonable accommodation in the temporary data-entry position and found “‘no evidence of a discriminatory motive.’” (Ibid.) Because the FEHA claims failed, the wrongful-termination claim — premised on a FEHA violation — failed too. (Id. at p. 377.) Judgment was entered for La Casa, and Lopez appealed. (Id. at pp. 370, 372.)

Issue

In the published portion, the precise question was one of first impression: what are the elements of a pregnancy-discrimination claim premised on a denial of reasonable accommodation under section 12945, subdivision (a)(3)(A)? More pointedly, Lopez argued the trial court “committed an error of law” by requiring her to prove (1) that she “had a condition related to pregnancy” and (2) that she “could otherwise perform the essential functions of the shelter-manager position,” contending those two elements “do not apply” to a section 12945(a)(3)(A) claim and that such a claim must be construed “‘more broadly and differently than Section 12940.’” (Lopez, supra, 89 Cal.App.5th at pp. 379, 381.) The court observed that “there are no California cases articulating the elements of a pregnancy discrimination claim under section 12945, subdivision (a)(3)(A).” (Id. at p. 370.)

Holding

Reasoning

Standard of review and the statement of decision. Because the judgment followed a bench trial, the court “review[ed] questions of law de novo” while applying “a substantial evidence standard of review to the trial court’s findings of fact,” construing the findings “liberally … to support the judgment.” (Lopez, supra, 89 Cal.App.5th at pp. 377–378.) The unobjected-to statement of decision was “‘our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law.’” (Id. at p. 372, fn. 1.) Because the dispositive published question was the legal content of the elements, the de novo standard controlled the analysis.

A threshold concession to the plaintiff. The court first rejected La Casa’s contention that Lopez could not rely on section 12945 at all — both because she purportedly invoked it for the first time at trial and because, in La Casa’s view, the statute did not apply. The court “reject[ed] La Casa’s first contention but agree[d] with the second.” (Lopez, supra, 89 Cal.App.5th at p. 378.) (The waiver ruling, part I.B, is unpublished and not citable.) The court thus reached the merits of the elements question.

The text supplies three elements; the regulation supplies a fourth. Parsing the statute, the court held that section 12945(a)(3)(A) “requires a successful plaintiff to prove at least three things: (1) that her employer ‘refuse[d] to provide reasonable accommodation,’ (2) ‘for a condition related to pregnancy, childbirth, or a related medical condition,’ (3) when the employee ‘so request[ed], with the advice of [her] health care provider.’” (Lopez, supra, 89 Cal.App.5th at p. 380.) The fourth element came from the definition of the operative term. Because the statute “apply [sic] exclusively to accommodations that are reasonable,” and the Fair Employment and Housing Commission defines a “‘[r]easonable accommodation’ of an employee affected by pregnancy” as “‘any change in the work environment or in the way a job is customarily done that is effective in enabling an employee to perform the essential functions of a job’” (Cal. Code Regs., tit. 2, § 11035, subd. (s)), the court reasoned that “a fourth element the successful plaintiff must prove is that, with the requested accommodation, she is able ‘to perform the essential functions of’ the job in question.” (Lopez, at p. 380.) The court treated the regulation as deserving “substantial deference” unless “‘clearly erroneous or unauthorized,’” and as “reflective of pertinent case law” defining reasonable accommodation as a workplace modification that “‘enables the employee to perform the essential functions of the job held or desired.’” (Id. at pp. 380–381.)

The plain language requires proof of a pregnancy-related condition. Lopez argued she need not “prove” a pregnancy-related condition because the subdivision “does not actually state” that she must, and the Commission imposes no such burden. (Lopez, supra, 89 Cal.App.5th at pp. 380–381.) The court answered that her reading “ignores express language in the statute” limiting the right to those with “‘a condition related to pregnancy, childbirth, or a related medical condition,’” which the Commission has defined as “‘a physical or mental condition intrinsic to pregnancy or childbirth.’” (Id. at p. 381.) It also “ignores basic principles of tort law requiring a private plaintiff to prove that a statute upon which she relies has actually been violated.” (Ibid.) The regulation permitting employers to require medical certification did not “excuse a plaintiff from proving all elements of her claim.” (Ibid.)

The essential-functions burden applies to PDLL accommodation claims. Lopez’s central legal theory was that section 12945 must be read “‘more broadly and differently than Section 12940,’” so that a pregnancy plaintiff need not show she could perform essential functions. (Lopez, supra, 89 Cal.App.5th at pp. 381–382.) The court accepted the premise but rejected the conclusion. It agreed that section 12945 “affords important protections to employees affected by pregnancy, over and above the protections of section 12940” — the up-to-four-months leave (§ 12945, subd. (a)(1)), the right to a temporary less-strenuous transfer (§ 12945, subd. (a)(3)(C)), and a right to accommodation “‘even when this condition does not rise to the level of a formally recognized disability,’” making the subdivision “broader than section 12940(m).” (Id. at p. 382.) “But none of these provisions entitles an employee to a job she cannot perform.” (Ibid.) Drawing on the Supreme Court’s Green v. State of California (2007) 42 Cal.4th 254, the court reaffirmed that “‘an adverse employment action on the basis of disability is not prohibited [by the FEHA] if the disability renders the employee unable to perform his or her essential duties, even with reasonable accommodation,’” and that “the plaintiff employee bears the burden of proving he or she was able to do the job, with or without reasonable accommodation.” (Lopez, at p. 381, quoting Green, at pp. 262, 264.) Lopez “points to no statutory language suggesting this same rule does not apply” under section 12945. (Ibid.)

Rejecting La Casa’s overreach — and limiting the holding. The court was careful to disclaim a converse, employer-friendly reading. “La Casa overreaches in contending that once an employee has exhausted her pregnancy-disability leave, she has no further right to an accommodation under section 12945.” (Lopez, supra, 89 Cal.App.5th at p. 382.) The accommodation obligation in subdivision (a)(3)(A) “is not limited to the specific accommodations discussed in other subdivisions,” so a plaintiff “may also allege discrimination based on the failure to provide some other reasonable accommodation of a pregnancy-related condition.” (Ibid.) But that breadth does not lower the bar: her “burden of proving that she was denied a reasonable accommodation within the meaning of the FEHA is not diminished by any language we find in section 12945,” and the regulations do not “entitle her to a specific form of accommodation.” (Ibid.) A modified work schedule “‘may’” be reasonable “‘in an appropriate case,’” the court noted, “but that does not make it a reasonable accommodation as a matter of law.” (Id. at pp. 382–383.)

Distinguishing Sanchez. Both sides leaned on Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, where a demurrer to a pregnant employee’s section 12940(m) claim was reversed because exhausting four months of PDLL leave did not bar a claim for additional finite leave. (Lopez, supra, 89 Cal.App.5th at pp. 383–384.) The court found Sanchez “of limited assistance because the plaintiff did not rely on section 12945,” so that court “had no occasion to address the elements” of a section 12945 claim. (Id. at p. 384.) Sanchez confirmed only that sections 12945 and 12940 “coexist, neither displacing the other,” not that section 12945 rights are “broader or qualitatively more important.” (Ibid.) Significantly, Sanchez reinforced the essential-functions principle: it rested on allegations that, with additional leave, the plaintiff “‘would then have been able to perform the essential functions of her job,’” and confirmed that FEHA “‘does not prohibit an employer from discharging an employee … who is unable to perform his or her essential duties even with reasonable accommodations.’” (Ibid.) Sanchez was thus “not authority for Lopez’s contention that she was not required to show that she was otherwise qualified.” (Ibid.)

Disposition. Finding “no support for Lopez’s construction of section 12945(a)(3)(A) in the statutory language, FEHC regulations or pertinent case law,” the court rejected her legal challenge to the trial court’s test. (Lopez, supra, 89 Cal.App.5th at p. 384.) The judgment was affirmed, with costs to La Casa. (Id. at p. 385.) The opinion was unanimous; there was no separate concurrence or dissent.

Significance

Lopez fills a doctrinal gap. Until this decision, “there [were] no California cases articulating the elements of a pregnancy discrimination claim under section 12945, subdivision (a)(3)(A).” (Lopez, supra, 89 Cal.App.5th at p. 370.) The PDLL’s reasonable-accommodation provision had been litigated, but mostly in federal district courts construing California law; Lopez supplies the first published, citable California articulation of the cause of action’s elements. Its four-element test — pregnancy-related condition, request with health-care-provider advice, refusal of a reasonable accommodation, and ability to perform essential functions with that accommodation — now anchors how trial courts instruct and evaluate these claims, and dovetails with CACI No. 2580.

The decision’s analytical contribution is its harmonization of the PDLL with FEHA’s general disability regime. The court declined to treat section 12945 as a free-standing, more-lenient track. It confirmed two truths that pull in opposite directions for the parties: section 12945 reaches conditions that fall short of a formal “disability,” and its accommodation obligation is not confined to leave or transfer — yet the plaintiff still bears the Green burden of proving she could perform the essential functions of the job with the accommodation she sought. (Lopez, supra, 89 Cal.App.5th at pp. 381–382.) In doctrinal terms, Lopez imports the essential-functions limitation from section 12940 disability law into PDLL accommodation law, reasoning from the regulatory definition of “reasonable accommodation” rather than from any express statutory command. The opinion’s reach is also bounded by its posture: the holding is about the legal elements and the allocation of the burden of proof; whether the evidence sufficed was resolved only in the unpublished portion and is not citable.

Key quotes

“[W]e conclude a cause of action under section 12945(a)(3)(A) requires proof that: (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff’s employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job.” (Lopez, supra, 89 Cal.App.5th at p. 371.)

“We agree that section 12945 affords important protections to employees affected by pregnancy, over and above the protections of section 12940. … But none of these provisions entitles an employee to a job she cannot perform.” (Id. at p. 382.)

“[H]er burden of proving that she was denied a reasonable accommodation within the meaning of the FEHA is not diminished by any language we find in section 12945. Nor do FEHC regulations entitle her to a specific form of accommodation.” (Id. at p. 382.)

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Practice pointer

Open questions

Because the opinion is certified for partial publication, several issues the court actually resolved are not citable and remain, for precedential purposes, open. The court’s review of whether Lopez’s evidence satisfied the elements — including whether the trial court correctly found no pregnancy-related condition and no ability to perform essential functions — was decided in unpublished part I.D, and its disposition of the section 12940 failure-to-accommodate claim in unpublished part II. (Lopez, supra, 89 Cal.App.5th at p. 384; Cal. Rules of Court, rule 8.1115.) On the published law, the court drew the fourth element entirely from the Commission’s regulatory definition of “reasonable accommodation” rather than from the statute’s text (Lopez, at p. 380), leaving room for future argument about whether a different regulatory or statutory reading might apply to non-disability pregnancy conditions that nonetheless impair job performance. The court also expressly left the door open to PDLL accommodation theories beyond leave and transfer — recognizing that “some other reasonable accommodation of a pregnancy-related condition” may be actionable (id. at p. 382) — without cataloguing what those accommodations might be or when a modified schedule, which “‘may’” be reasonable but is not reasonable “as a matter of law,” will in fact qualify (id. at pp. 382–383). Finally, Lopez leaves untouched the interaction between section 12945’s silence on the “undue hardship” affirmative defense (available under section 12940, subdivision (m)) and a section 12945 accommodation claim; the court observed the distinction but found Lopez had not explained its significance, so its consequence awaits a case that squarely raises it. (Id. at pp. 382–383.)