1

Filed 3/16/23

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

GABRIELA LOPEZ,

Plaintiff and Appellant,

v.

LA CASA DE LAS MADRES,

Defendant and Respondent.

 A163133

 (City & County of San Francisco

 Super. Ct. No. CGC-18-565637)

Gabriela Lopez filed the underlying action for employment 

discrimination and wrongful termination against La Casa de Las Madres (La 

Casa). La Casa is a non-profit organization that provides services to women 

and children who are victims of domestic violence. Lopez worked for La Casa 

at various times between 2002 and 2017. In 2014, she accepted the position 

of shelter manager at La Casa’s residential shelter for domestic violence 

victims. In September 2016, Lopez gave birth to a baby girl. Thereafter she 

did not return to work due to events that gave rise to this action. Following a 

bench trial, the court entered judgment in favor of La Casa. On appeal, 

Lopez contends the trial court misapplied provisions of the Fair Employment 

and Housing Act (FEHA) that require an employer to provide reasonable 

accommodations for a pregnancy-related condition. (Govt. Code, § 12940 et 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, 

this opinion is certified for publication with the exception of “DISCUSSION” 

parts I.B, I.D, and II.
2

seq.; subsequent statutory references are to this code.) We affirm the 

judgment. 

In the published portion of our decision, we observe there are no 

California cases articulating the elements of a pregnancy discrimination 

claim under section 12945, subdivision (a)(3)(A) (section 12945(a)(3)(A)). 

Drawing from the statutory language and applicable regulatory law, as well 

as pertinent FEHA case law, we 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. Here, the trial court 

applied a correct understanding of these elements and, contrary to plaintiff's 

contentions otherwise, properly placed the burden on plaintiff to prove that 

she had a condition related to pregnancy and that she was able to perform 

the essential functions of her job with reasonable accommodation. (See e.g. 

Green v. State of California (2007) 42 Cal.4th 254, 262, 264 (Green).) 

In the unpublished portion of this opinion, we reject Lopez’s argument 

that she proved La Casa engaged in an unlawful employment practice under 

section 12945 and section 12940 by failing to accommodate Lopez’s 

pregnancy-related disability. 

BACKGROUND

I. Lopez’s Claims

In June 2018, Lopez filed her operative first amended complaint, in 

which she alleged the following material facts: In April 2016, Lopez notified 

La Casa of her pregnancy and that her expected due date was in September. 
3

She was placed on modified work duty a few months before her due date, and 

“[s]everal” weeks before her due date she was placed off work due to 

conditions or symptoms relating to her pregnancy. After giving birth, Lopez

experienced complications and provided La Casa with periodic certifications 

relating to her condition. During this period, Lopez alleged, La Casa began 

sending Lopez harassing communications, failed to engage in an interactive 

process to determine if Lopez’s disability could be accommodated, and refused 

to provide two “modest” accommodations suggested by Lopez’s doctor. Lopez

attempted to convince La Casa to allow her to return to work, but her efforts 

were “rebuffed,” and ultimately, she was forced out of her job “due to normal 

complications experienced after her pregnancy.” Lopez alleged further that 

she applied for work elsewhere but was denied a job because La Casa 

misrepresented the reasons for Lopez’s termination. 

Lopez incorporated her factual allegations into nine causes of action, 

the first six of which alleged violations of the FEHA: (1) pregnancy 

discrimination (§ 12940, subd. (a)); (2) harassment because of pregnancy 

(§ 12940, subd. (j)); (3) failure to prevent discrimination and harassment 

(§ 12940, subd. (k)); (4) disability discrimination (§ 12940, subd. (h)); (5) 

failure to accommodate (§ 12940, subd. (m)); and (6) failure to engage in an 

interactive process (§ 12940, subd. (n)). Lopez’s other claims were for (7) 

wrongful termination, (8) intentional infliction of emotional distress, and (9) 

preventing future employment by misrepresentation. 

In November 2018, La Casa was granted summary adjudication of four 

of Lopez’s claims, which rulings are not at issue in this appeal. What 

remained were causes of action for pregnancy discrimination and failure to 

prevent discrimination, disability discrimination, failure to accommodate a 
4

disability, and wrongful termination. In March and April 2021, a court trial 

was held to resolve Lopez’s remaining causes of action. 

II. The Trial Evidence

The trial court received numerous exhibits into evidence and heard 

testimony from Lopez and four management-level employees of La Casa. We 

use the trial court’s statement of decision as our primary source in 

summarizing the evidence, quoting pertinent passages as appropriate.

1

In December 2014, Lopez was hired as La Casa’s shelter manager. Her 

duties included supervising approximately 10 of La Casa’s 32 employees: a 

cook; a facilities worker; four or five program advocates; two case managers;

and two overnight crisis counselors. The shelter manager and her 

subordinates, aside from the cook and facilities worker, interact directly with 

the domestic-violence victims who come to the shelter for help. When Lopez 

held this position, she was expected to work 30 hours a week at the shelter, 

plus 10 hours on administrative tasks, and to always be on call. Lopez was 

also responsible for covering shifts when a subordinate was absent, whether 

by arranging for another employee to fill in or covering the shift herself. 

The shelter manager handles emergency situations and is responsible 

for delivering “domestic-violence services 24/7.” The location of the shelter is 

confidential because the residents are in danger and escaping violent 

personal relationships. The residents themselves can also be dangerous. For 

example, some victims experience “murder/suicidal ideations,” and some 

1 Lopez did not object to the trial court’s tentative statement of 

decision which was subsequently adopted by the court and incorporated into 

a judgment in favor of La Casa. “The statement of decision provides the trial 

court’s reasoning on disputed issues and is our touchstone to determine 

whether or not the trial court’s decision is supported by the facts and the 

law.” (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.) 
5

bring firearms to the shelter. La Casa provides counseling to all shelter staff 

due to “secondary trauma,” and La Casa’s trial witnesses all confirmed the 

stressful nature of working at the shelter. Lopez testified that she “did not 

generally find the work to be stressful.” 

In late February 2016, La Casa learned that Lopez was pregnant. La 

Casa’s human resources manager, Ms. Arias, advised Lopez of her pregnancydisability rights in a letter dated April 7. Those rights included four months 

of pregnancy-disability leave and a concurrent 12-week “ ‘baby-bonding’ ” 

leave. 

On August 16, 2016, Lopez began her pregnancy-disability leave

pursuant to the advice of her doctor. The following day, Arias confirmed in 

writing that Lopez’s return-to-work date was November 8. While Lopez was 

on leave, her shelter-manager duties were covered by “several” people, 

including La Casa’s executive director, Ms. Black, and Lopez’s direct 

supervisor, Ms. Bergson. Arias and others covered Lopez’s administrative 

duties. Arias testified that “this ‘pitching in’ coverage was not sustainable 

indefinitely.” 

Lopez’s leave was extended beyond November 8, 2016, pursuant to a 

series of certifications from Lopez’s doctor. When La Casa extended Lopez’s 

leave to December 16, Arias reminded Lopez that her four-month pregnancydisability leave would then have concluded. Thereafter, La Casa received a 

work-status report from Kaiser, which stated that Lopez should not work 

from December 17, 2016 until January 14, 2017. By December 17, “Lopez 

had received the full 4 months of [pregnancy-disability leave] required by 

statute,” which included the concurrent “12 weeks of baby-bonding leave

provided by La Casa.” 
6

On December 20, Arias notified Lopez that La Casa would treat the 

work-status report from Kaiser as a “request for accommodation under 

FEHA.” Over the course of the following month, Lopez submitted three 

versions of a form questionnaire entitled “Instructions to Health Care 

Provider,” all signed by Ms. Campion, who identified herself as a social 

worker at Kaiser specializing in mental health. We use the date of Campion’s 

signature to distinguish among these forms. 

On a form dated January 3, 2017, Campion reported that Lopez had a 

“ ‘moderate-severe’ ” disability that affected her ability to perform her job by 

limiting her from engaging in activities that are “ ‘stress producing or require 

sustained attention,’ and those that ‘require the making of important or 

significant decisions.’ ” Campion stated that this disability necessitated two

modifications to Lopez’s work duties: “ ‘1) time off to allow patient to 

continue mental health [treatment], both groups and individual therapy 

2) flexible/shortened workdays if patient finds nature of the work or stress of 

the work overwhelming and triggering of severe anxiety/depressive 

symptoms.’ ” On a section of the form inquiring how long these limitations 

would be necessary, Campion stated “ ‘It is unknown,’ ” and when asked to 

provide a phone number for follow-up questions, Campion stated, “NA, 

patient had to sign Kaiser release of information and completing this form 

was the only authorized action.” 

La Casa made a determination that it could not accommodate the 

limitations that Campion proposed. It could provide time off for therapy, but 

could not function indefinitely without a shelter manager. Nor could that job 

be “performed without making significant decisions and facing stressful 

situations at unpredictable times.” 
7

On January 6, 2017, Arias notified Lopez that La Casa was unable to 

accommodate the limitations proposed by Campion. Instead, La Casa offered 

to extend Lopez’s leave until January 14, and upon her return to work to 

assign her to a “Data Entry Specialist position,” which had flexible hours and 

did not involve stressful tasks. The position paid an hourly wage, which was 

less pay than Lopez received as a shelter manager, but Lopez was offered 

higher pay than others who had filled the position. This data-entry position 

was offered as a “temporary accommodation,” with the expectation that Lopez 

would return to her shelter management role. Arias testified that she told 

Lopez during a phone conversation that the data-entry position would be 

temporary. Moreover, Lopez knew that the position was being offered to her 

as a temporary accommodation because the same offer had previously been 

accepted by three of Lopez’s subordinates, while they were out on disability 

leave. 

Lopez advised La Casa she was not interested in the data-entry 

position and that she was able to return to her role as shelter manager. 

Lopez submitted another health care provider form, signed by Campion on 

January 11, 2017. This partially completed form contained the following 

statement: “ ‘Advised by patient to just complete modification section for 

employer.’ ” In answer to a question about proposed modifications, Campion 

stated, “ ‘Modifications recommended include time off to continue individual 

therapy sessions and group therapy.’ ” Campion reported that it was 

“unknown” how long modifications would be necessary.

La Casa advised Lopez that the January 11 form was incomplete and 

asked Lopez to submit a complete updated form. Lopez submitted another 

form from Campion dated January 26, 2017. Campion stated that she had 
8

not seen Lopez in a month because Lopez’s insurance had lapsed.

2 Therefore, 

Campion was unable to assess the severity of Lopez’s disability, whether 

Lopez was able to perform job duties, or the duration of any job limitations. 

After Lopez submitted the January 26 form, she did not respond to “further 

repeated inquiries” from La Casa.

On February 6, 2017, La Casa sent a letter to Lopez stating that La 

Casa considered Lopez to have “elected to discontinue her employment.” 

That same day, Lopez went to La Casa’s administrative office to talk to the 

executive director without an appointment, but Ms. Black was not there. 

Arias testified that Lopez was angry, threw her keys on Arias’s desk, and 

stormed away, at which point she was considered a former employee. Lopez 

testified that she left her keys with Arias because she thought she had been 

terminated, but she acknowledged that La Casa never asked her to turn in 

her keys. Lopez never stated that she resigned or submitted a written 

resignation and no one at La Casa told Lopez she was terminated. 

C. The Trial Court’s Findings

The trial court found that Lopez failed to carry her burden of proving, 

by a preponderance of the evidence, one or more element of each claim she 

pursued at trial.

2 Lopez was advised that she was required to pay her portion of her 

health-insurance premiums while she was on leave, but failed to “timely pay 

those amounts and never paid them in full.” La Casa paid Lopez’s premiums 

through December 31, 2016. Lopez was also advised that after her 

pregnancy-disability leave expired, her health care coverage would end on 

December 31 unless she maintained that coverage under the Consolidated 

Omnibus Budget Reconciliation Act of 1985 (COBRA). Lopez did not exercise 

her COBRA option. 
9

1. Pregnancy Discrimination and Failure to Prevent

 Discrimination

At trial, Lopez based her pregnancy discrimination claim on section 

12945(a)(3)(A), which 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.” The trial 

court found that Lopez failed to establish three elements it considered 

essential to this claim: that she (1) “had a condition related to pregnancy”; 

(2) “could perform the essential functions of her job”; and (3) “was denied a 

reasonable accommodation,” as requested on the advice of a health-care 

provider.

Regarding the first finding, there was evidence that after Lopez had 

her baby and exhausted her pregnancy-disability leave, she sought an 

extension of her leave, but the basis for that extension was not established at 

trial. No medical professional testified, no medical records were offered into 

evidence, and Lopez “repeatedly objected” to evidence regarding the “medical 

condition” that formed the basis of her claim. The forms Campion signed did 

not contain a diagnosis and, although they assert a mental-health related 

disability, do not so much as mention pregnancy. Arias testified that La Casa 

was unaware of the reason Lopez sought to extend her leave. Lopez testified 

that after her daughter was born, she felt sad and depressed, attended 

therapy and was given medication, which, the court found, suggested that 

Lopez may have had post-partum depression, but Lopez was impeached with 

evidence that she was depressed and experiencing stress before her

pregnancy leave began. For all of these reasons, the court concluded that 

Lopez failed to establish that the condition for which she sought an 

accommodation was pregnancy related. 
10

Even assuming that La Casa “inferred” Lopez was suffering from 

pregnancy-related depression, Lopez failed to establish that “she could 

perform the essential functions of her job with a reasonable accommodation,” 

the court found. The court based this finding on evidence that Campion had 

“advised against activities that produced stress and that required making 

important decisions,” and that the shelter-manager job “was inherently 

stressful and required quick decisions that sometimes meant the difference 

between life and death.” In reaching this conclusion, the court found that 

Lopez’s testimony that she did not find the duties of the shelter manager to 

be stressful was not credible. 

Finally, the court found that Lopez failed to prove that she was denied 

a reasonable accommodation. The court found that La Casa would have 

allowed Lopez time off to attend therapy, and that a “flexible or shortened 

workday” if Lopez found her work stressful was not a reasonable 

accommodation. The court based this ruling on evidence that La Casa had 

discussed options that would have enabled them to accommodate this second 

suggestion of Campion’s, including hiring a “ ‘shadow’ shelter manager” to

step in if Lopez had to leave work due to stress or anxiety. La Casa had 

concluded this solution was “unworkable” for multiple reasons, including the 

cost of paying two people to do the same job, and the confusion for staff of 

having two managers. La Casa was also concerned that effective 

communication would be critical for a shadow manager to succeed and Lopez 

had a documented history of poor communication with her immediate 

supervisor, Ms. Bergson. During the period Lopez was on leave, Bergson had 

assumed many of Lopez’s duties, with assistance from others, but that 

accommodation could not be sustained indefinitely, the court found. 
11

The court also based its ruling on evidence that La Casa offered Lopez 

the temporary assignment of a data-entry position, which the court found

was a reasonable accommodation, and that Lopez told Arias she would rather 

quit than take that position. The court also found no evidence of a 

discriminatory motive by La Casa, but rather that “La Casa expected Ms. 

Lopez to return to her job as a shelter manager and made numerous efforts to 

effect that result.” 

Because Lopez failed to prove pregnancy discrimination, her related 

claim for failing to prevent discrimination necessarily failed, the trial court 

found. (Citing Trujillo v. North City Transit Dist. (1998) 63 Cal.App.4th 280

(Trujillo).) 

2. Disability Discrimination

Lopez alleged that La Casa committed a different FEHA violation by 

terminating Lopez’s employment because of her disability. Section 12940, 

subdivision (a) (section 12940(a)) makes it unlawful to discriminate against 

any person because of a physical or mental disability, and the trial court 

found that clinical depression and post-partum depression are mental 

disabilities covered by the FEHA. (§ 12926, subd. (j)(1).) To establish 

discrimination based on a disability, the court found, Lopez was required to 

prove the following elements: (1) she suffers from a disability; (2) she is 

otherwise qualified to do her job, with or without an accommodation; and (3) 

she suffered an adverse employment action because of her disability. (Citing 

Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) 

The court found that Lopez failed to prove this claim because, assuming that 

she suffered from depression, she did not prove that she was otherwise 

qualified to perform the shelter-manager job, given her need to avoid 

stressful duties. 
12

3. Failure to Accommodate Disability

Lopez’s fifth cause of action was for violating the FEHA by failing to 

accommodate Lopez’s disability. Section 12940, subdivision (m) (section 

12940(m)) makes it unlawful for an employer to fail “to make reasonable 

accommodation for the known physical or mental disability of an . . . 

employee.” The trial court found that the elements of a failure to 

accommodate claim are: (1) the plaintiff has a disability covered by the 

FEHA; (2) the plaintiff can perform essential job functions of the position; 

and (3) the employer failed reasonably to accommodate the plaintiff’s 

disability. (Citing Hernandez v. Rancho Santiago Community College Dist.

(2018) 22 Cal.App.5th 1187, 1193–1194.) Re-affirming its prior findings, the 

court concluded that Lopez did not carry her burden of proving the second 

and third elements of this claim. 

4. Wrongful Termination

Lopez’s final claim was for wrongful termination in violation of public 

policy, a claim premised on La Casa’s alleged violation of the FEHA. The 

trial court found this claim failed because La Casa did not violate the FEHA. 

DISCUSSION

Lopez contends the judgment must be reversed because she proved that 

La Casa’s refusal to grant the modifications to her work duties requested by 

Campion violated two distinct provisions of the FEHA—section 12945 and 

section 12940—and, therefore, the trial court must reconsider whether Lopez 

was wrongfully terminated. “In reviewing a judgment based upon a 

statement of decision following a bench trial, we review questions of law de 

novo. [Citation.] We apply a substantial evidence standard of review to the 

trial court’s findings of fact. [Citation.] Under this deferential standard of 

review, findings of fact are liberally construed to support the judgment and 
13

we consider the evidence in the light most favorable to the prevailing party, 

drawing all reasonable inferences in support of the findings.” (Thompson v. 

Asimos (2016) 6 Cal.App.5th 970, 981.) 

I. Pregnancy Discrimination Under Section 12945

Lopez first contends that the trial court applied the wrong test for 

evaluating a pregnancy discrimination claim based on section 12945, and 

that she satisfied all requirements for proving this claim. La Casa counters 

that (1) Lopez should not be permitted to rely on section 12945 because she 

invoked that provision for the first time at trial and, in any event, (2) section 

12945 was properly applied. We reject La Casa’s first contention but agree 

with the second. 

A. Statutory Overview

Pregnancy discrimination is an unlawful employment practice under 

provisions of the FEHA that prohibit discrimination on the basis of sex, 

disability, and pregnancy-related conditions. Discrimination based on the 

fact that 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). (§ 12926, subd. (r); see e.g., Badih v. Myers (1995) 36 

Cal.App.4th 1289.) And discrimination based on the fact that a person 

suffers from pregnancy-related depression is a form of disability 

discrimination, which is also prohibited by section 12940(a). (§ 12926, 

subd. (j).) Moreover, section 12945 (the statute Lopez relies on first) 

supplements provisions of section 12926 and 12940 that apply to pregnancyrelated conditions by delineating additional employment practices that are 

unlawful “unless based upon a bona fide occupational qualification.” 

(§ 12945, subd. (a) (section 12945(a)).) 
14

Section 12945 addresses two distinct protections available to employees

with conditions relating to pregnancy. First, employees disabled by such a 

condition are entitled to pregnancy-disability leave. Specifically, it is 

unlawful for an employer 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(a)(1).) And during the disability 

leave period, it is unlawful for the employer to refuse to maintain insurance 

coverage for the employee. (§ 12945(a)(2).) 

Second, section 12945 entitles an employee to accommodation of a 

condition relating to pregnancy in specified situations. It is unlawful for an

employer to refuse to provide a reasonable accommodation for a condition 

related to pregnancy, whether or not that condition amounts to a disability, if 

such accommodation is requested by the employee with the advice of the 

employee’s health care provider. (§ 12945(a)(2)(A).) It is also an unlawful 

employment practice to refuse to accommodate a request temporarily to 

transfer a pregnant employee to a less strenuous position if the employer has 

a policy of making such transfers for temporarily disabled employees, or if the 

temporary transfer is requested with the advice of the employee’s physician 

and such a “transfer can be reasonably accommodated.” (§ 12945(a)(3)(B)–

(C).)

In construing these protections afforded by section 12945, we are 

guided by subdivision (b) of this statute, which states: “This 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.”
15

B. Lopez Relied on Section 12945 at Trial

As La Casa contends, Lopez did not allege pregnancy discrimination 

under section 12945 in her complaint. Her first cause of action was for 

pregnancy discrimination in violation of the FEHA, but her pleaded theory 

was that “pregnancy was a motivating factor in [La Casa’s] decision to 

terminate [Lopez’s] employment and to commit other acts of discrimination 

against her.” Lopez based this claim on section 12940(a) and also cited 

section 12926, but her complaint did not cite section 12945. Moreover, when 

the superior court denied La Casa summary adjudication of Lopez’s 

pregnancy discrimination claim it did not base its ruling on section 12945 or 

reference this statute in its order. 

Nevertheless, Lopez’s theory at trial was that La Casa discriminated 

against her due to a pregnancy-related condition by denying her reasonable 

accommodation in violation of section 12945(a)(3)(A). As best we can 

determine, La Casa did not object to Lopez pursuing this distinct theory at 

trial. Moreover, the record shows that neither party objected to the 

statement of decision, which frames our appellate review. Thus, we reject La 

Casa’s contention that Lopez is precluded from relying on section 12945 in 

arguing that she proved her claim for pregnancy discrimination. However, 

Lopez fails to show that the trial court’s decision as to this particular claim is 

unsupported by the law or the evidence. 

C. The Elements of Lopez’s Discrimination Claim

Lopez argues the trial court committed an error of law by placing the 

burden on Lopez to prove that (1) she had a condition related to pregnancy, 

and (2) she could otherwise perform the essential functions of the sheltermanager position. According to Lopez, these two elements do not apply to a 
16

claim for pregnancy discrimination that is premised on a violation of section 

12945(a)(3)(A). 

The parties cite no California case that delineates the elements of a 

discrimination claim under section 12945. However, federal cases evaluating 

alleged violations of section 12945(a)(3)(A) use essentially the same test 

employed by the trial court in the present case. (Graves v. Pau Hana Group,

LLC (E.D.Cal., Nov. 8, 2013, No. 2:13-CV-01278-JAM-EFB) 2013 

U.S.Dist.Lexis 161303, at p. *15; see also Gonzales v. Marriott International,

Inc. (C.D. Cal. 2015) 142 F.Supp.3d 961, 969 (Gonzales) [collecting cases].) 

Lopez acknowledges this fact, but nevertheless contends that requiring her to 

prove the two elements listed above was inconsistent with the plain language 

of section 12495(a)(3)(A) and the interpretation of this provision adopted by 

the Fair Employment and Housing Commission (FEHC), which promulgates 

regulations implementing the FEHA.3 On the contrary, we conclude the 

language of the statute and FEHC regulations defeat Lopez’s arguments.

The language of section 12945(a)(3)(A) requires a successful plaintiff to 

prove at least three things: (1) that her employer “refuse[d] to provide a 

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.” (§ 12945(a)(3)(A); 

see Gonzales, supra, 142 F.Supp.3d at p. 969.) A “ ‘[r]easonable 

accommodation’ of an employee affected by pregnancy” is defined by FEHC 

3 Regulations implementing the FEHA are found in California Code of 

Regulations, title 2, sections 11006 et seq. (subsequent references to 

regulations are to these FEHA regulations). Courts give substantial 

deference to the FEHC’s interpretation of the FEHA unless the agency’s 

interpretation “is ‘clearly erroneous or unauthorized.’ ” (Kelly v. Methodist 

Hospital of So. California (2000) 22 Cal.4th 1108, 1118.) 
17

regulation 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.” (Regs., § 11035(s); see also Gonzales, at p. 970.) 

Thus, 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. (Regs., § 11035(s).)

Lopez contends she was not required to prove she had a condition 

related to pregnancy because section 12945(a)(3)(A) does not actually state 

that a plaintiff must “prove” this fact. She contends further that the FEHC 

imposes no such burden on a plaintiff, citing regulation 11050. Lopez’s 

construction of section 12945(a)(3)(A) ignores express language in the statute 

requiring that individuals seeking reasonable accommodation must have “a 

condition related to pregnancy, childbirth, or a related medical condition.” 

The FEHC has determined that this phrase “means a physical or mental 

condition intrinsic to pregnancy or childbirth.” (Regs., § 11035(d); see also 

Regs., § 11040 [addressing reasonable accommodations made by employees 

“affected by pregnancy”].) Lopez’s theory also ignores basic principles of tort 

law requiring a private plaintiff to prove that a statute upon which she relies 

has actually been violated. (See Trujillo, supra, 63 Cal.App.4th at pp. 286–

288.) And Lopez overlooks that regulation section 11050 on its face allows 

employers to require medical certification of the advisability of a “reasonable 

accommodation . . . because of pregnancy.” (Italics added.) Nothing about 

this regulation excuses a plaintiff from proving all elements of her claim for 

pregnancy discrimination under section 12945(a)(3)(A).

Lopez is no more successful with her second challenge to the trial 

court’s legal test. Section 12945(a)(3)(A) does not explicitly address whether

a person claiming she was denied a reasonable accommodation must be able, 
18

with accommodation, to perform essential job functions, but the statute does 

apply exclusively to accommodations that are reasonable, which the FEHC

has defined as those accommodations that “enabl[e] an employee to perform 

the essential functions of a job.” (Regs., § 11035(s).) This FEHA regulation is

reflective of pertinent case law, which defines a reasonable accommodation as 

“ ‘a modification or adjustment to the workplace that enables the employee to 

perform the essential functions of the job held or desired.’ ” (Scotch v. Art 

Institute of California (2009) 173 Cal.App.4th 986, 1010; see also Kaur v. 

Foster Poultry Farms LLC (2022) 83 Cal.App.5th 320, 345 (Kaur); NadafRahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 973–978 

(Nadaf-Rahrov).) 

Our Supreme Court has held 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.” (Green, supra, 42 Cal.4th at p. 264, italics 

omitted; see also Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 

1337 (Sanchez).) And the burden of proof is on the plaintiff to prove this 

point: “[I]n order to establish that a defendant employer has discriminated 

on the basis of disability in violation of the FEHA, the plaintiff employee 

bears the burden of proving he or she was able to do the job, with or without 

reasonable accommodation.” (Green, at p. 262.) Following Green, another 

division of this court held, in the specific context of a claim for reasonable 

accommodation of a physical or mental disability under section 12940(m), 

that “the plaintiff bears the burden of proving he or she was able to perform 

the essential functions of the job with accommodation.” (Nadaf-Rahrov, 

supra, 166 Cal.App.4th at p. 978.) Lopez points to no statutory language 
19

suggesting this same rule does not apply when a plaintiff bases her

discrimination claim on an alleged violation of section 12945. 

Lopez contends this requirement does not apply when a plaintiff with a 

pregnancy-related condition claims she was denied a reasonable 

accommodation under section 12945 because the protections afforded by 

section 12945(a)(3)(A) must be construed “more broadly and differently than 

Section 12940.” We agree that section 12945 affords important protections to 

employees affected by pregnancy, over and above the protections of section 

12940. These additional protections include a right to up to four months of 

pregnancy-disability leave (§ 12945(a)(1)), and a right to temporary transfer 

to a less strenuous job if such a “transfer can be reasonably accommodated” 

(§ 12945(a)(3)). Section 12945(a)(3)(A) also protects a right to reasonable 

accommodation for a condition associated with pregnancy or childbirth, even 

when this condition does not rise to the level of a formally recognized 

disability. Section 12945(a)(3)(A) is, in this regard, broader than section 

12940(m), which addresses an employer’s obligation to accommodate 

“disability.” But none of these provisions entitles an employee to a job she 

cannot perform. 

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. The employer’s obligation to 

accommodate pregnancy-related conditions in section 12945(a)(3)(A) is not 

limited to the specific accommodations discussed in other subdivisions of 

section 12945. Thus, a plaintiff who elects to rely on section 12945 is not 

limited to arguing that she was denied four months of pregnancy-disability 

leave or a temporary alternative work assignment, but may also allege 

discrimination based on the failure to provide some other reasonable 
20

accommodation of a pregnancy-related condition. However, 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. Nor 

do FEHC regulations entitle her to a specific form of accommodation. A 

modified work schedule “may” be a reasonable accommodation in an 

appropriate case, regulation section 11065(p) instructs, but that does not 

make it a reasonable accommodation as a matter of law in this case, as Lopez 

asserts. 

Contending that a request for accommodation of a pregnancy-related 

condition should be treated differently from requests to accommodate other 

types of disabilities under section 12940, Lopez points out that the FEHC has 

recognized that “[i]n general, pregnancy accommodation can be expected to be 

less costly than average disability accommodations because no special 

equipment is usually needed to accommodate a pregnant woman and the 

accommodation is needed for a short, finite period of time.” (Cal. Reg. Notice 

Register 2012, No. 9-Z (Mar. 2, 2012) at p. 276.)4 These factors may be 

relevant to the question whether a request for accommodation of a 

pregnancy-related condition is reasonable. They do not support Lopez’s 

contention that a plaintiff who claims she was denied a reasonable 

accommodation under section 12945 should be excused from having to prove 

that, with accommodation, she was able to perform the essential functions of 

her job.

4 Lopez requests judicial notice of California Regulatory Notice 

Register, Register 2012, No. 9-Z. She contends that portions of the notice 

that discuss 2012 amendment to FEHA regulations are relevant to interpret 

section 12945. We grant the request only as to portions of the notice 

document that address FEHA regulations. We find nothing in this material 

that supports Lopez’s construction of section 12945(a)(3)(A).
21

Lopez also points out that while undue burden is a statutory defense to 

a failure to accommodate claim brought under section 12940(m), section 

12945 contains no reference to this affirmative defense. Lopez fails to explain

why this distinction between the two provisions supports her attack on the 

test the trial court used to evaluate the elements of her pregnancy 

discrimination claim. Her related argument that the trial court relied on an 

undue burden defense in concluding that Lopez failed to prove her pregnancy 

discrimination claim simply misconstrues the statement of decision. When 

the statement of decision discusses evidence that the options of La Casa 

“hiring a ‘shadow’ shelter manager” or continuing indefinitely to rely on other 

managers to fill in were unworkable, this was in support of findings that 

Lopez had not proven the elements of her cause of action. Specifically, she 

had “not met her burden of proving that she could perform the essential 

functions of her job” or that the requested accommodation of allowing her to 

leave when the work became too stressful was “reasonable.”

Finally, Lopez and La Casa both rely on Sanchez, supra, 213 

Cal.App.4th at p. 1334, a case involving an employee placed on bed rest early 

in her high-risk pregnancy. The woman was terminated from her job while 

pregnant and on a temporary leave of absence, and she alleged “she was fired 

because of her pregnancy, her pregnancy-related disability and/or her 

requests for accommodations.” (Id. at p. 1335.) The trial court sustained a 

demurrer to the plaintiff’s complaint, finding she could not state a claim 

under section 12940 of the FEHA based on pregnancy-related disability 

because she had received all the disability leave mandated by section 12945. 

(Ibid.) This ruling was reversed on appeal. (Id. at p. 1334.) 

The Sanchez court found that the fact the plaintiff had received four 

months of disability leave under section 12945 did not preclude her from
22

alleging viable FEHA-related claims under provisions of section 12940 that 

prohibit sex discrimination and disability discrimination because section 

12945 augments rather than replaces FEHA provisions otherwise applicable 

to pregnancy-related disability. (Sanchez, supra, 213 Cal.App.4th at 

pp. 1338–1339.) Moreover, the fact that the plaintiff had exhausted all 

available leave under section 12945 did not preclude her from alleging a 

viable claim under section 12940(m) for denying the reasonable 

accommodation of an additional, finite leave until the plaintiff gave birth. 

(Id. at p. 1341.) In reaching this conclusion, the court reasoned that the 

plaintiff had alleged facts sufficient to show that if the employer had granted 

her request for additional leave until she gave birth, she would then have 

been able to perform the essential functions of her job. (Id. at pp. 1340–

1341.) 

Sanchez is of limited assistance because the plaintiff did not rely on 

section 12945, so the Sanchez court had no occasion to address the elements 

of a discrimination claim brought under section 12945. Beyond that, the case

was before the court of appeal at the pleading stage based on a discrete fact 

pattern: A pregnant plaintiff who received four months of pregnancydisability leave was denied additional leave for the finite period until she 

gave birth. (Sanchez, supra, 213 Cal.App.4th at pp. 1334–1335.) Contrary to 

Lopez’s appellate argument, Sanchez does not demonstrate that the rights 

conferred under section 12945 are broader or qualitatively more important 

than rights conferred under section 12940, but instead confirms that these

two provisions coexist, neither displacing the other. (Id. at pp. 1338–1339.) 

On the other hand, Sanchez does not support La Casa’s appellate argument

that once an employee receives four months of pregnancy-disability leave, she 

has no further right to any other accommodation under section 12945. That 
23

issue was never addressed in Sanchez since the only accommodation the 

plaintiff’ requested was for an additional period of disability leave pursuant 

to section 12940(m). (Id. at pp. 1334–1335.)

Although Sanchez does not address the elements of a pregnancy 

discrimination claim brought under section 12945, it does confirm the settled 

principle that “the FEHA does not prohibit an employer from discharging an 

employee with a physical [or mental] disability or medical condition who ‘is 

unable to perform his or her essential duties even with reasonable 

accommodations, or cannot perform those duties in a manner that would not 

endanger his or her health or safety or the health or safety of others even 

with reasonable accommodations.’ ” (Sanchez, supra, 213 Cal.App.4th at 

p. 1337.) Thus, Sanchez is not authority for Lopez’s contention that she was 

not required to show that she was otherwise qualified to perform the 

essential functions of her job. 

In summary, we find no support for Lopez’s construction of section 

12945(a)(3)(A) in the statutory language, FEHC regulations or pertinent case 

law, and accordingly we reject her contention that the test the trial court 

used to evaluate her pregnancy discrimination claim requires us to reverse 

the judgment.

D. Challenges to the Trial Court’s Factual Findings

Lopez makes two additional arguments regarding the trial court’s 

findings relating to Lopez’s section 12945 claim. 

First, Lopez contends that certifications from her medical provider 

were sufficient as a matter of law to establish that she had a condition 

related to pregnancy. In making this argument, Lopez fails to distinguish 

between certifications from her doctor that pertained to her pregnancydisability leave and the forms Campion subsequently completed, after Lopez’s 
24

four months of disability leave ended in December 2016. The disputed issue 

at trial was whether Lopez had a condition related to pregnancy after she 

completed her disability leave.

As discussed, the trial court found Lopez failed to prove that after her 

pregnancy-disability leave ended, she had a condition relating to pregnancy. 

“The substantial evidence standard of review takes on a unique formulation 

where, as here, ‘the trier of fact has expressly or implicitly concluded that the 

party with the burden of proof did not carry the burden and that party 

appeals.’ [Citations.] ‘[W]here the issue on appeal turns on a failure of proof 

at trial, the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law.’ [Citation.] 

Specifically, we ask ‘whether the appellant’s evidence was (1) “uncontradicted 

and unimpeached” and (2) “of such a character and weight as to leave no 

room for a judicial determination that it was insufficient to support a 

finding.” ’ ” (In re S.G. (2021) 71 Cal.App.5th 654, 671.) 

Applying this standard, we conclude that the trial court did not err in 

finding that Lopez failed to carry her burden of proof. The first form 

Campion submitted stated that Lopez had a mental health-related disability,

but did not indicate that the disability was related to pregnancy. And three 

weeks later, when Campion signed the last (incomplete) form on behalf of 

Lopez, she acknowledged not knowing whether Lopez continued to suffer 

from a disability. Beyond that, Lopez did not produce any medical evidence 

pertaining to her diagnosis. She testified that she felt sad after the birth of 

her daughter, but other evidence showed that she was depressed before she 

went on disability leave. 

Moreover, the trial court did not base its ruling exclusively, or even 

primarily, on the failure of proof regarding the nature of Lopez’s condition 
25

after mid-December. Instead, the court found that even if the evidence 

supported an inference Lopez’s apparent depression was pregnancy related, 

she failed to prove “that she could perform the essential functions of her job 

and that she was denied a reasonable accommodation.” 

Turning to Lopez’s second factual argument, she contends that the 

“modest” accommodations La Casa refused to provide were reasonable “as a 

matter of law.” The reasonableness of a requested accommodation is a 

factual determination made by the trier of fact. (Kaur, supra, 83 Cal.App.5th 

at p. 346; see also Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 

935, 953–954.) The determination is “made on a case-by-case basis, taking 

into consideration such factors, including but not limited to, the employee’s 

medical needs, the duration of the needed accommodation, the employer’s 

legally permissible past and current practices, and other such factors, under 

the totality of the circumstances.” (Regs., § 11040.) 

The first accommodation evaluated by the trial court was Lopez’s 

request for pregnancy-disability leave. The court did not decide whether this 

was a reasonable accommodation because it found that La Casa granted the 

request and provided Lopez with four months of pregnancy-disability leave, 

the maximum leave required by section 12945(a)(1). Lopez does not dispute 

this finding on appeal. 

Instead, Lopez contends that La Casa could “easily” have left Lopez’s 

position vacant or granted her an additional period of leave to “allow her to 

recuperate.” Lopez posits that an additional, finite leave to recover from a 

disability constitutes a reasonable accommodation under section 12940(m). 

(Citing Sanchez, supra, 213 Cal.App.4th at p. 1338; Hanson v. Lucky Stores,

Inc. (1999) 74 Cal.App.4th 215, 226.) We find no evidence this issue was 

raised at trial but even if was, Lopez fails to show that La Casa denied a 
26

request for an additional, finite leave. The last work-status report from 

Kaiser indicated that Lopez should not work until January 14, 2017, but 

instead of seeking a leave for that discrete period, Lopez requested other 

accommodations so that she could return to work.

As discussed in our background summary, the two modifications to the 

duties of a shelter manager that Lopez requested were time off to attend 

therapy and “flexible/shortened workdays” so that Lopez could leave work if 

she experienced stress or anxiety. These requests were made pursuant to 

Campion’s recommendation that Lopez not engage in activities that were 

stressful, required sustained attention, or required her to make important or 

significant decisions. On appeal, Lopez attempts to show error by asserting 

that only the first of these modifications was at issue. 

Lopez contends that her request for time off to attend therapy was 

reasonable as a matter of law. The problem with this argument is that the 

trial court found “La Casa could and would have accommodated the time off 

for therapy.” In other words, Lopez was not denied this accommodation. 

Lopez insists the request to attend therapy was the only accommodation she 

was seeking at the time of her “termination.” Putting to one side the 

question whether Lopez was terminated or instead resigned, we reject this

argument. The evidence shows that after Lopez was told that the two 

modifications Campion proposed were not a reasonable accommodation that 

would enable Lopez to perform as shelter manager, she attempted to undo

Campion’s recommendation by submitting additional forms. But the second 

and third forms had only incomplete information, and in signing them

Campion did not withdraw or revise her initial recommendation that, for an 

indefinite period, Lopez would require a flexible or shortened work schedule 

so that she could leave work when she experienced stress. The second form
27

had almost no information on it, only the accurate but incomplete statement 

that “modifications recommended include time off to continue individual 

therapy sessions and group sessions.” (Italics added.) And the third form 

frankly recounted that Campion had no current information about Lopez’s 

medical condition. 

Lopez also contends that a request for a modified work schedule is a

reasonable accommodation as a matter of law. This conclusory assertion is 

inadequate to merit review of the finding that in this case the modification of 

“flexible/shortened workdays” was not a reasonable accommodation. (See 

e.g., Thee Aguila, Inc. v. Century Law Group, LLP (2019) 37 Cal.App.5th 22, 

30–31 [appellant has the “ ‘responsibility to support claims of error with 

citation and authority; this court is not obligated to perform that function on 

appellant’s behalf’”].) Because the shelter manager needed to be available to 

make important decisions at any time and in an inherently stressful 

environment, the court found that a modification permitting Lopez to leave 

work whenever she experienced stress or anxiety was not a reasonable 

accommodation. Lopez does not dispute the evidence upon which the court 

relied or otherwise show that the flexible or shortened workday recommended 

by Campion was a reasonable accommodation as a matter of law in this case. 

II. Failure to Accommodate Under Section 12940

Lopez contends that even if she did not prove her pregnancy 

discrimination claim under section 12945(a)(3)(A), she proved that La Casa 

violated section 12940(m) by refusing to modify the job duties of a shelter 

manager so Lopez could return to that position. 

Lopez’s primary argument is that the trial court failed properly to 

analyze the second element of her reasonable accommodation claim, which 

required her to prove she could perform the essential job functions of the 
28

shelter-manager position. Lopez argues first, that the court misconstrued

“stress” as an essential job function despite the fact that stress is not a 

fundamental job duty. It is Lopez who misconstrues the court’s discussion of 

the essential job functions requirement, which was an element of all three of 

the alleged FEHA violations that Lopez pursued at trial. The court found 

that the essential functions of the shelter-manager job included making 

“critical decisions in an inherently stressful environment,” making on-thespot decisions in emergency situations that could “arise at any time,” and 

being “on call” to address a crisis as it arises. These findings are supported 

by the testimony of La Casa employees. 

Lopez contends that the court failed to consider whether Lopez could 

have performed the shelter-manager job with the modifications that Campion 

proposed. As Lopez’s cited authority reflects, the pertinent issue was 

whether Lopez was unable to perform “ ‘essential duties even with reasonable 

accommodations.’ ” (Sanchez, supra, 213 Cal.App.4th at p. 1341.) Here, 

substantial evidence supports the trial court’s finding that the modification of 

a flexible schedule, allowing Lopez to leave work to avoid stress or anxiety,

was not a reasonable accommodation. By the same token, this modification 

would not have enabled Lopez to perform her essential duties; it would have 

excused her from having to perform them, thus requiring some other 

employee to do the shelter-manager job. 

Lopez further contends that the trial court erred by finding that the 

offer of a temporary assignment to a data-entry position was a reasonable 

accommodation. Again her arguments are unavailing. She contends, for 

example, that giving an employee a temporary job is not a reasonable 

accommodation as a matter of law. (Citing Regs., § 11068(d)(3).) The dataentry position was not a temporary job, but a position that was offered as a 
29

temporary re-assignment until Lopez recovered from her unspecified 

disability. Lopez also contends that, absent circumstances not applicable

here, an employer may not “transfer an employee affected by pregnancy over 

her objections to another position.” (Regs., § 11039(a)(1)(G).) La Casa could 

not force Lopez to accept a job transfer to a position she found objectionable, 

but that does not mean a temporary assignment to the data-entry position 

would not have been a reasonable accommodation of the disability that 

prevented Lopez from performing the essential duties of a shelter manager.

In any event, the finding that the data-entry position was a reasonable 

accommodation was not necessary to the court’s finding that Lopez failed to 

prove her failure-to-accommodate claim. This claim failed because Lopez did 

not carry her burden of proving that she could perform the essential job 

functions of the shelter-manager position even with a reasonable 

accommodation.

Finally, Lopez contends La Casa failed to prove its undue burden 

defense. Section 12940(m) provides that the employer’s obligation reasonably 

to accommodate the known disability of an employee “shall” not be construed 

“to require an accommodation that is demonstrated by the employer . . . to 

produce undue hardship.” But this is an affirmative defense that comes into 

play only after a plaintiff has established that a specific requested 

accommodation “[was] reasonable and thus required in the first place.” 

(Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227.) Here, as we 

have discussed, Lopez failed to prove she was denied a reasonable 

accommodation.

DISPOSITION

The judgment is affirmed. Costs are awarded to respondent. 
30

TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.
31

Trial Court: City & County of San Francisco Superior Court

Trial Judge: Hon. Rochelle C. East

Counsel: Lohr Ripamonti, Jason S. Lohr for Plaintiff and Appellant

Saber Law Group, Shirley C. Wang, Andrew Mailhot, and 

Riley Harris (Balestreri) for Defendant and Respondent 

Lopez v. La Casa De Las Madres (A163133)