Filed 4/28/23 ; Certified for Publication 5/19/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DEANNA HODGES

,

Plaintiff and Appellant

,

v.

CEDARS

- SINAI MEDICAL

CENTER

,

Defendant and Respondent

. B297864

Los Angeles County

Super

. Ct

. No. BC691836

APPEAL from judgment of the Superior Court of Los

Angeles County

. Michael L. Stern , Judge. Affirmed

.

Kousha Berokim for Plaintiff and Appellant.

Venable, Daniel P. Hoffer, Ryan M. Andrews and

Rudolph G. Klapper for Defendant and Respondent.

___________________________2 Plaintiff Deanna Hodges is a former employee of defendant

Cedar s

- Sinai Medical Center (Cedars). As a condition of her

continued employment

, she was required to get a flu vaccine

unless she obtained a valid exemption

— one establishing a

medically recognized contraindication to getting the flu vaccine

. Her doctor wrote a note recommending an exemption for various

reasons

, including her history of cancer and general allergies.

None of the reasons was a medically recognized contraindication

to getting the flu vaccine. Cedars denied the exemption request

. Plaintiff still refused to get the vaccine . Cedars terminated her.

Plaintiff sued Cedars for disability discrimination and related

claims under the Fair Employment and Housing Act,

Gov ernment Code 1 section 12900 et seq. (FEHA) . The trial court

granted Cedars’s motion for summary judgment . We affirm.

BACKGROUND

Cedars operates a nonprofit academic medical center in Los

Angeles

. Its total workforce exceeds 15,000 employees, including

approximately 2,100 doctors and 2,800 nurses. Together, the se

employees provide medical care to thousands of patients per day

and perform related administrative and operational functions

. Plaintiff began working for Cedars in 2000

. Throughout

her tenu re

, she worked in an administrative role with no patient

care responsibilities. H er office was in a n administration

building Cedars owned about a mile from the main Cedars

medical campus, though she occasionally visited the main

medical campus in her capacit y as an employee. A shuttle bus

ran continuously between the main medical campus and the

administration building

, and many Cedars employees traveled

between the two sites on a daily basis.

1 Undesignated statutory references are to the Government

Code.3 In 2007, plaintiff was diagnosed with stage III colorectal

cancer

. She stopped working for a year and a half to undergo

treatment, which included chemotherapy. The treatment was

effective to rid her of cancer but left her with lingering side

effects . These included unspecified allergies, a weakened

immune system

, and neuropathy

— damage to the nerves

resulting in an ongoing “ tingling sensation” in her fingers and

toes. N one of these side effects limited her ability to perform her

job functions

, and she successfully returned to work for Cedars in

2009.

As an administ rative employee without direct patient

contact

, plaintiff was under no obligation to get a flu vaccine

when she was hire d or when she returned from cancer treatment

in 2009 . This changed in 2017 . That September, Cedars

announced a new policy requiring all employees , regardless of

their role, to be vaccinated by the beginning of flu season

. This

was the latest expansion to Cedars’s longstanding efforts to limit

employee transmission of flu , which had become more urgent in

recent years following multiple patient deaths relating to flu

. The expanded 2017 policy aligned with the

recommendation of the United States Department of Health and

Human Services Center s for Disease Control and Prevention

(CDC) “that all U.S. health care workers get vaccinated annual ly

against influenza.” For these purposes, the CDC define d “health

care workers” to include “persons (e.g., clerical, dietary,

housekeeping, laundry, security, maintenance, administrative,

billing, and volunteers) not directly involved in patient care but

potentially exposed to infectious agents that can be transmitted

to and from health care workers and patients. ”

Cedars’s 2017 flu vaccination policy made exceptions only

for employees establishing “a valid medical or religious

exemption.” Employees wh o declined the vaccine “based on4

medical contraindication, per CDC guidelines” were required to

submit an exemption request form co mpleted by their physician

for review by Cedars’s internal “Exemption Review Panel.” Th e

primary role of this panel was to d etermine whether an employee

had a recognized contraindication to getting the flu vaccine. If an

employee did not have a recognized contraindication but a closely

related condition, like a moderate allergy to the flu vaccine, the

pane l would determine whether it was possible to help the

employee get vaccinated in a way that accommodated the

employee’s concerns

.

An unvaccinated employee whose exemption the panel

approved would be required to mask in all patient care areas. An

unvaccin ated employee who se ex emption the panel denied would

be subject to termination. The vaccination requirement , and

attendant enforcement mechanisms, were set to go into effect on

November 1, 2017.

Plaintiff did not want to get the flu vaccine. When the

req uirement was announced

, she had no diagnosis of any

contraindication to getting the flu vaccine. S he made an

appointment with Dr. Henderson, her longtime physician , for

advice

. Dr. Henderson is a gastroenterologist and internist who

practice s at Cedars. He has no expertise in advising on whether

a person should or should not receive a flu vaccine for medical

reasons

. Also

, contrary to plaintiff’s repeated claims in her reply

brief , he is not an oncologist.

Plaintiff told Dr. Henderson she feared side effects from the

flu vaccine would be like those she experienced with

chemotherapy

. She was particularly afraid of needles. She also

told Dr. Henderson her parents had experienced severe flu

- like

symptoms after receiving the flu vaccine (abou t 20 year s prior)

.

Based on his knowledge of her health history

, her physical and

emotional condition, her role at Cedars, and his views on the5

efficacy of the flu vaccine and suitability of alternative prevention

methods

, Dr. Henderson advised plaintiff not to get vaccinated

.

He agreed to help her apply for an exemption

. As required by the flu vaccine policy, Dr. Henderson

completed Cedars’s preprinted exemption form

. The form

explains Cedars “permits medical exemption from influenza

vaccination ONLY for recognized me dical

contraindications .” The form identifies as recognized

contraindications only (1) history of life threatening allergic

reaction to the flu vaccine or any of its components; and

(2) history of Guillain

- Barré Syndrome within six weeks following

a previous dose of any flu vaccine

. ( For the 2017

- 2018 flu

vaccine, the CDC recognized onl y one contraindication : history of

severe allergic reaction to any component of the vaccine or after a

previous dose of any flu vaccine. It recognized a history of

Guillain

- Barré Syndrome within six weeks following a previous

dose of any flu vaccine as m erely a “precaution.” )

The form includes space for doctors to state “ [ o ] ther”

reasons their patient should not receive the flu vaccine . It

cautions that such “ [ o ] ther” re asons will be reviewed on a case

by

- case basis . Doctors resorting to the “ [ o ] ther” category are

advised to “provide all supporting documentation.”

In completing plaintiff’s form, Dr. Henderson only check ed

the box next to “ [ o ] ther” and did not check either of the iden tified

“ [ r ] ecognized contraindication [ s ] .” To explain his “ [ o ] ther”

reason , he wrote: “H[istory] of multiple allergies post treatment

for [colorectal cancer] [ with ] chemoradiation. Extreme [unwell]

state results from in j ections [and] immunizations . No direct

patient contact.” He signed the form October 16, 2017. He

attached no supporting documentation.

In his deposition, Dr. Henderson acknowledged tha t , when

he completed the form, he was unaware of plaintiff having any6

medically recognized contraindication to the flu vaccine

— his

reasons for the exemption request had “nothing to do with

allergic reactions to the components of [the vaccine]

, ” and he was

aware of no Guillain

- Barré Syndrome history for plaintiff.

Dr

. Henderson agreed that, in completing the form, he was “not

com municating that [plaintiff] had a recognized contraindication

to the flu vaccine .

. . .”

Plaintiff submitted the signed exemption form to Cedars on

October 31, 2017, the deadline for doing so and the day before the

vaccination requirement was to take ef fect

. Plaintiff had to make

an appointment to submit the form

, and it was the earliest

appointment she could get when she first tried to schedule it on

or after October 25.

The same day she submitted her form

, a Cedars employee

called plaintiff and told her the form was illegible, her request

was denied, and she would be suspended and terminated if she

did not agree to get the flu vaccine. Cedars placed p laintiff on

unpaid administrative leave the next day for failure to comply

with the vaccination policy.

In the ensuing days, plaintiff attempted to persuade Cedars

her exemption request was valid. On November 1, 2017, she

spoke with a different Cedars employee

, Amanda Sibley, who

confirmed her request had been denied. Ms. Si bley is a nurse

practitioner who was responsible for implementing Cedars’ s flu

vaccine policy. Plaintiff told Ms. Sibley that plaintiff is a cancer

survivor, suffers from various medical issues and multiple

allergies

, and was instructed by her doctor not to take the flu

vaccine. Ms. Sibley asked plaintiff if she was allergic to egg

, historically a common flu vaccine component

. Plaintiff declined

to specify any particular allergies in response. Instead, she asked

Ms. Sibley to contact Dr. Henderson for further explanation.7 Plaintiff also called Dr. Henderson to ask him to contact

Ms. Sibley. In response, Dr. Henderson called Cedars , also on

November 1, and spoke with Ms. Sibley

. Over the course of a

two

- minute conversation, Dr. Henderson “did [his] best to

communicate ” the basis for plaintiff’s exemption request, namely

“cancer history, neurological disorder, neuropathy, and the flu

vaccine’s extreme risk of triggering reactions, allergies, and/or

symptoms to [plaintiff].”

In the afternoon of November 1, Ms. Sibley related the

content of plaintiff’s exemption request to the members of the flu

vaccine exemption review panel by e

- mail (subject to the

qualification that “ 2 words ,” w hich Dr. Henderson had not been

able to recall when she spoke to him and later determined to be

just the word “immunizations,” were illegible)

. Approximately

45 minutes later, one of the members, Dr. Jonathan Grein,

responded : “ A history of multiple allergi e s would not be an

appropriate reason to receive an exemption. I would deny this

request.” Dr. Grein explain ed in his declaration that he did not

consider any of the reasons stated on plaintiff’s exemption form

as valid bases for exemptio n from the flu vaccine

, and that her

cancer history is actually a reason to get vaccinated

. The

afternoon after Dr. Grein e

- mailed his denial recommendation to

the panel , another member responded to the group: “I agree.” No

members dissented from Dr. Gr ein’s proposed approach.

On Novembe r 2

, 2017, Ms. Sibley e

- mailed a letter to

plaintiff informing her that the panel had denied her exemption

request because it did not meet the CDC criteria for medical

exemption. It offered her the opportunity to “change [her] mind

about receiving the flu vaccine” and reiterated that failure to

comply with the vaccination require ment would subject her to

termination.8 On November 7, 2017, a Cedars human resources

representative, Angela Harvey, called plaintiff to encourage her

to reconsider getting the flu vaccine. Plaintif f offered to wear a

face mask, work from home, and avoid g oing anywhere near the

main medical campus . But she remained steadfast that she

would not be vaccinated without assurance from her doctor that

it was safe to do so.

Around the same time, before she was terminated, another

person encouraged plaintiff to re consider her choice not to get

vaccinated: Dr. Henderson. According to his deposition

testimony, he thought a good “compromise” to the “pickle” of

plaintiff facing termination was for her “to receive the vaccine

and go forward, and that was [his] general understanding of what

[he] thought would be a good solution for her, but she was

severely adverse to the idea of getting the vaccination even in

suffering the consequences.” Plaintiff’s reasons, according to

Dr. Henderson, “all boiled down to the fact that she did not want

to get [vaccinated].”

Plaintiff was terminated effective November 9 , 2017

. Plaintiff was the only Cedars employee terminated that flu

vaccine cycle for failure to comply with the vaccination policy. Of

the 24 employees who soug ht medical exemptions, 10 were

gra nted and 14, including plaintiff’s, were denied. All other

employees whose requests were denied agreed to receive the

vaccine.

After obtaining a right to sue letter from the California

Department of Fair Housing and Emplo yment, p laintiff sued

Cedars in January 2018

. Her complaint contained six causes of

action , each alleged as a violation of FEHA or the public policy it

manifests : (1) disability discrimination ; (2) failure to engage in

the interactive process; (3) failure to accommodate a disability ;

(4) retaliation; (5) failure to take reasonable steps to prevent9

discrimination, harassment and retaliation; and (6) wrongful

termination.

Cedars moved for summary judgment on all causes of

action in December 201 8

. Pla intiff filed an opposition in

February 20 19 and objected to certain of Cedars’s evidentiary

submissions. Cedars filed a reply and objected to certain of

plaintiff ’ s evidentiary submissions. The trial court held a hearing

and granted Cedars’s motion in Ma rch 2019. At the same time, i t

ruled on Cedars’s evidentiary objections (overruled in part and

sustained in part) and decided the parties ’ respective requests for

judicial notice ( Cedars’s granted in toto; plaintiff’s granted in

limited part)

. We are directed to no resolution in the record of

plaintiff’s evidentiary objections.

Certain new evidence filed in support of plaintiff’s

opposition bears particular note because it plays prominently in

plaint iff’s appellate briefing

. Plaintiff submitted a declaration

from Dr. Henderson in which he identifie d the factors he

considered in signing plaintiff’s vaccine exemption form

. The

factors were: “a

. [plaintiff’s] preexisting neurological condition

[¶] b

. [plaintiff’s] parents’ severe adverse reaction to the flu

vaccine [¶] c

. [plaintiff’s] neuropathy in her hands, legs, and

feet [¶] d

. [plaintiff’s] cancer history [and consequent surgeries]

[¶] e

. [plaintiff’s] emotional state [¶] f

. [plaintiff] was not a

health care personnel [¶] g

. [plaintiff’s] very limited contact

with health care personnel, which could have been even further

limited [¶] h

. [a]vailability of other flu prevention methods to

[plaintiff], such as masking and social distancing [and] [¶] i

. the

low efficacy of the flu vaccine.”

Dr. Henderson then concluded that “[t]hese factors, both on

their own, and specially combined together, presented extreme

risk of triggering reacti ons, allergies, and/or symptoms to

[plaintiff].” Cedars objected to this testimony , including for the10

reason that Dr. Henderson was not an expert qualified to offer it.

Indeed, Dr. Henderson testified in deposition “ I don’t have any

expertise to tell her whether she should receive [the flu vaccine]

or not receive it ,” and “ I don’t have an expert knowledge of that.”

The trial court nonetheless overruled Cedars’s objection and

admitted t his testimony

. Cedars does not challenge that ruling

on appeal.

Pl aintiff also submitted evidence from both Dr. Henderson

and a retained expert, Dr. Dorratoltaj (who is not a medical

doctor), to the effect that Cedars’s recognized contraindications to

the flu vaccine “are not exhaustive

. ” The trial court sustained

Cedar s’s objections to this evidence

. Similarly, plaintiff

submitted evidence to the effect that “[an] individual’s physician

should determine if the individual should take the flu vaccine.”

Again, the trial court sustained Cedars’s objections to this

evidenc e

. P laintiff challenge s neither ruling on appeal.

After the trial court granted Cedars’s motion for summary

judgment

, plaintiff moved for reconsideration. The trial court

denied plaintiff’s motion. Plaintiff timely appealed the judgment.

DISCUSSION

1. Summary Judgment and Standard of Review

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).) Summary

judgment is appropriate where “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.” ( Id.,

subd. (c) .) The moving defendant bears the burden of persuasion

that no triable issues exist and that it is entitled to judgment as a

matter of law. (

Aguilar v. Atlantic Richfield Co . (2001)

25 Cal.4th 826, 850 .)11 Our Supreme Court has made clear that the purpose of the

1992 and 1993 amendments to the summary judgment statute

was “ ‘to liberalize the granting of [summary judgment]

motions.’ ” ( Perry v. Bakewell Hawthorne, LLC ( 2017) 2 Cal.5th

536, 542 .) It is no longer calle d a “disfavored” remedy. ( Ibid. )

“Summary judgment is now seen as ‘a particularly suitable

means to test the sufficiency’ of the plaintiff’s or defendant’s

case.” ( Ibid. )

On appeal, “we take the facts from the record that was

before the trial court . .

. . ‘ “We review the trial court’s decision

de novo , considering all the evidence set forth in the moving and

opposing papers except that to which objections were made and

sustained.” ’ ” ( Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th

1028, 1037

, citation omitted ( Yanowitz ) .)

“ Furthermore, our review is governed by a fundamental

principle of appellate procedure, namely, that ‘ “[a] judgment or

order of the lower court is presumed correct ,” ’ and thus, ‘ “error

must be affirmatively shown.” ’ [Citation.] Under this principle,

[the nonmoving] plaintiff bears the burden of establishing error

on appeal, even though [the moving] defendant [] had the burden

of proving [its] right to summary judgment before the trial court.

[Citation.] For this rea son, our review is limited to contentions

adequately raised and supported in plaintiff ’ s brief. ” ( Murchison

v. County of Tehama (2021) 69 Cal.App.5th 867, 882

( Murchison ) .)

2. Analysis

a. Disability d iscrimination

.

i. McDonnel l Douglas burden

- shifting

framework

.

For purposes of evaluating FEHA discrimination claims,

Calif ornia courts have adopted the burden

- shifting framework

enunciated by the United States Supreme Court in McDonnell12

Douglas Corp. v. Green (1973) 411 U.S. 792

. ( Zamora v. Security

Industry Specialists

, Inc. (2021) 71 Cal.App.5th 1, 31 ( Zamora ) .)

The framework was originally developed for use at trial

. ( Id. at

p. 32 .) When applied at summary judgment

, it works as follows:

“The ‘ employer, as the moving party, has the initial burden to

present admissible evidence showing either that one or more

elements of plaintiff

’ s prima facie case is lacking or that the

adverse employment action was based upon legitimate,

nondiscriminatory factors. ’ [Citation.] If the employer satisfies

its initial burden, it ‘ “ ‘will be entitled to summary [adjudication]

unless the plaintiff produces admissible evidence which raises a

triable issue of fact material to the defendant ’ s showing. In

short, by applying McDonnell Do uglas ’ s shifting burdens of

production in the context of a motion for summary [adjudication],

“ the judge [will] determine whether the litigants have created an

issue of fact to be decided by the jury. ” ’ ” ’ ” ( I bi d.

, italics

omitted .) Whether summary adjudication is appropriate “ will

depend on a number of factors, including the strength of the

plaintiff ’ s prima facie case, the probative value of the proof that

the employer ’ s explanation is false, and any other evidence that

supports the employe r ’ s case. [Citation.] However, many

employment cases present issues of intent and motive [which]

‘ are rarely appropriate for disposition on summary judgment,

however liberalized [summary judgment standards may] be. ’ ”

( Id. at p p

. 32

– 33

, italics omitted .)

As plaintiff observ es, the court in Wallace v. County of

Stanislaus (2016) 245 Cal.App.4th 109 ( Wallace ) held the

McDonnell Douglas burden

- shifting framework inapplicable to

disability discrimination cases in which the plaintiff introduces

direct evidence that the employer’s challenged conduct was

motivated by prohibited reasons

. ( Wallace, at p. 123.) We must13

therefore address as a threshold question whether plaintiff

produced any such direct evidence.

“Direct evidence is eviden ce that proves a fact without

inference or presumption.” ( Zamora

, supra

, 71 Cal.App.5th at

p. 35 .) Here, the only evidence plaintiff points to as precluding

application of the McDonnell Douglas framework is that “after

[plaintiff ] followed Dr. Henderson’s orders and did not receive the

flu shot, Cedars terminated [her] because she did not get the [flu]

vaccination .”

This is not direct evidence of a prohibited motive.

Terminating a person because she refuse d to get a flu shot in

violation of employer policy is no t prohibited by FEHA. (See

generally § 12940.) Plaintiff says she was terminated because

she was “[un]ab[le] to get the vaccine

. ” But this was her claimed

motive in refusing to get the flu vaccine

, not Cedars ’s stated

reason for terminating her

. T here are no statements by Cedars

or documentary evidence that Cedars terminated plaintiff

because she was “unable” to get the vaccine, or due to any

claimed d isability. To the contrary, the direct evidence

, including

the written policy and exemption request form, shows Cedars had

a policy of terminating employees who failed to receive the flu

vaccine without a religious exemption or medically recognized

contraindication to receiv e the flu vaccine. Cedars terminated

plaintiff when she refused the flu vaccine because she failed to

provide evidence of a medically recognized contraindication. In

fact, the direct evidence is that Cedars viewed plaintiff as not

disabled in any way and fully capable of receiving the flu vaccine

, notwithstanding her diagnoses offered by Dr. Henderson in

support of her claimed exemption.

T h us, the McDonnell Douglas burden shifting framework,

as adapted for the summary adjudication context

, applies here.14 ii. Relevan t FEHA anti

- discrimination

provisions

.

FEHA declares it unlawful for “an employer, because of

. . . physical disability, mental disability [or] medical cond i tion

. . . to

discharge the person from employment

. . . or to discriminate

against the person in compensation or in terms, conditions, or

privileges of employment.” (§ 12940, subd. (a).)

FEHA defines “mental disability” and “physical disability”

separately. Both forms of disability require that a plaintiff h as or

is perceived by an employer as having a condition that “ limits a

major life activity. ” (§ 129 26

, subd s

. (j), (m).) “Limits” means

making achievement of a major life activity difficult. ( Id

. ,

subd s

. (j) (1)(B ) & (m) (1) (B)(ii) .) Major life activities include

“physical, mental, and social activities and working.” ( Id

. ,

subds. (j)(1)(C ) & (m)(1)(B)(iii).)

FEHA defines “medical condition” to include “[a]ny health

impairment related to or associated with a diagnosis of cancer or

a record or history of cancer.” (§ 12926, subd. (i)(1).) A “medical

condition” need not limit a major life activity. However, “medical

condition” is not defined to include an employer’s perception of a

condition the way that “physical disability” and “mental

disability” are. (See § 12926, subd. (j)( 4), (5) [“mental disability”

includes being regarded as having a mental disability] ; id.,

subd. (m)(4), (5) [“physical disability” includes being regar ded as

having a physical disability] ; see also § 12926.1, subd. (b) [ “The

law of this state contains broad definitions of physical disability,

mental disability, and medical condition

. It is the intent of the

Legislature that the definitions of physical disability and mental

disability be construed so that applicants and employees are

protected from discrimination due to an actual or perceived

physical or mental impairment that is disabling, potentially15

disabling, or perceived as disabling or pot entially disabling .”

(italics added) ].)

iii. Medical condition or physical disability

discrimination ?

Cedars raises a threshold dispute over whether plaintiff

raised a material triable issue as to medical condition

discrimination

. Cedars contends she did not, because she alleged

and argued in the trial court only physical disability

discrimination.

P hysical disability discrimination and medical condition

discrimination are separate causes of action in California. ( Soria

v. Univision Radio Los Ang eles, Inc

. (2016) 5 Cal.App.5th 570,

585

– 586 ( Soria )

. ) Plaintiff argues i n her opening brief that her

cancer history and neur opathy amount to both a physical

disability and a medical condition

. Cedars argues in its

responding brief that plaintiff cannot defeat summary judgment

by arguing she was subject to medical condition discrimination

because her complaint did not allege or put Cedars on notice of

such a claim. Plaintiff does not respond to this argument in her

reply.

We need not resolve whether plaintiff’s complaint alleged

medical condition discrimination because plaintiff does not

substantively develop such a claim in he r appellate briefing.

Instead, she identifies the elements of her prima facie

discrimination claim as being those of a claim for physical

disability discrimination. Citing Arteaga v. Brink ’ s, Inc. (2008)

163 Cal.App.4th 327, 344

– 345 ( Arteaga )

, a physical disability

case, p laintiff recites the elements of her prima facie claim as

follows: “that she [] (1) s uffered from a disability, or was regarded

as suffering from a disability; (2) could perform the essential

duties of the job with or without reasonable accommodations [ ; ]

and (3) was subjected to an adverse employment action because16

of the disability or perceived disability. ” Quoting Wallac e

, supra

,

245 Cal.App.4th 109, another physical disability discrimination

case (see id. at pp. 124

– 125)

, plaintiff goes on to explain that a

plaintiff satisfies the third element

— the employer’s intent to

discriminate

— “by proving (1) the employer knew that plaintiff

had a physical condition that limited a major life activity

, or

perceived him to have such a condition, and (2) the plaintiff’s

actual or perceived physical condition was a substantial

motivating reason for the de fendant’s decision to subject the

plaintiff to an adverse employment action” ( id

. at p. 129

, italics

a dded )

.

Based on plaintiff’s framing of the cause of action

, we

consider only whether there is a triable issue of fact regarding

physical disability discrimination. We find, however, that even if

plaintiff had articulated her cause of action as one for medical

condition discrimination, her claim would fail for the same reason

her claim of physical disability discrimination would as explained

in part 2.a. v

., post

.

iv. There i s n o t riable i ssue of f act as to

p hysical d isability d iscrimination

.

Plaintiff argues her cancer history and neuropathy amount

to a physical disability because they “make it impossible for her

to work as she cannot work as she cannot get vaccinated. Her

disabilities limited her ability to safely receive the vaccine.” To

be clear, plaintiff admits her cancer history and neuropathy in no

way otherwise limited her ability to work in 2017.

By this argument, plaintiff asserts she has a physical

disability within the meaning of section 12926,

subdivision (m)(1), which provides that a physiological condition

that affects one or more e numerated body systems and “limits a

major life activity” is a “physical disability” for purposes of17

FEHA. ( § 12926, subd. (m)(1) (B)(i) .) Working is expressly

defined as a “ [ m ] ajor life activit [ y ] .” ( Id.

, subd. (m)(1)(B)(iii).)

In moving for summary judgment, Cedars introduced

evidence that plaintiff was not disabled and could not prov e she

was disabled. It offered official guidance from the CDC and

testimony from Dr. Grein that there were only two medically

recognized contraindications for getting the flu vaccine. It offered

testimony from plaintiff and Dr. Henderson that she had never

been diagnosed with either contraindication

. Dr. Henderson

further acknowledged that none of the conditions he listed on her

exemption form were recognized contraindications for getting the

flu vaccine

. I f this were not enough, Cedars also offered evidence

that

, before she was terminated, Dr. Henderson advised plaintiff

to reconsider her decision not to get the vaccine and that, under

CDC guidelines, plaintiff’s cancer history was not a

contraindication but rather a n indication

— a condition making it

advisable

— that a person get vaccinated

.

T he only evidence plaintiff now points to as establishing

her disability is Dr. Henderson’s statement in paragraph 10 of his

declaration that “[t]hese factors, both on their own, and specially

combined together, presented extreme risk of triggering

reactions, allergies, and/or symptoms t o [plaintiff].” The

referenced “factors” are recited above and include plaintiff’s

cancer history and neuropathy

, along with other factors

unrelated to plaintiff’s physical condition

.

Cedars does not directly address this testimony in its

briefing

. Inste ad, it dismisses Dr. Henderson’s testimony

wholesale as nonexpert opinion inadequate to establish facts

beyond the competence of a lay witness

, i.e.

, whether plaintiff’s

conditions amount to contraindications to getting the flu vaccine

.

Cedars offers a compelling basis for this position

—

Dr

. Henderson’s own testimony that he “do[es]n’t have any18

expertise to tell her whether she should receive [the flu vaccine]

or not receive it”

— but it omits a critical fact : Cedars made this

objection to the trial court

, and it was overruled. Cedars could

have challenged this determination under Code of Civil

Procedure section 906, but it did not. Accordingly, its

characterization of Dr. Henderson’s testimony as “lay opinio n”

after the trial court overruled its objection on expert competency

grounds is forfeited.

Nonetheless, Cedars is correct that Dr. Henderson’s

declaration fails to raise a material fact as to plaintiff’s claimed

disability. Specifically, the declaration fails to show the risks of

getting the vaccine, if manifested, would rise to the level of a

disability. Dr. Henderson fails to specify what the possible

“triggering reactions, allergies, and/or symptoms” might be and

fails to suggest how they would limit her ability to work, either in

general or in receiving the flu vaccine as a condition of her job.

As explained in Arteaga

, supra

, 163 Cal.App.4th 327

, t here must

be evidence that the symptoms are sufficiently severe to make a

major life activity

, such as working, difficult. ( Id. at pp. 347

–

349.) This must also be true of symptoms that are merely

possible

. Although plaintiff does not call our attention to it

, we note

that Dr. Henderson also states in his declaration “I was

concerned [plaintiff’s] preexisting neurological deficit [ sic ] and

considered tha t any further unnecessary procedure, sever e

reaction, or allergy, caused by the flu vaccine, could cause further

neuropathy.” But again, Dr. Henderson does not express a view

of any risk of a “severe” reaction and does not describe how such

a reaction would manifest

. He does not articulate what “further

neuropathy” resulting from any reaction would entail

— whether

it would prolong her existing condition or make it worse

, and to

what extent

. And, most critically, he does not articulate how19

neuropathy amounts to a dis abil ity. Indeed

, there is no evidence

plaintiff’s existing neuropathy amount s to a disability. By her

own admission, it did not limit her ability to work except in her

claimed connection to getting the flu vaccine.

Plaintiff offered no evidence that t he potential symptoms

Dr. Henderson describe d would amount to disabilities. For

example, one factor he consider ed in concluding plaintiff wa s at

risk for symptoms is her family history of reactions to flu

vaccines. These reactions were flu

- like symptoms. Even though

they can be temporarily debilitating and cause a person to miss

work

, flu symptoms are not a disabil ity. (Cal. Code Regs., tit. 2,

§ 11065

, subd. (d)(9)(B) .) Similarly, allergies can range in

severity. Indeed, Dr. Henderson testified that some allergies to

medications can be so minor that they do not warrant noting in a

patient’s chart. Minor reactions to a vaccine cannot amount to a

disability. (See ibid. [ excluding from definition of “disability”

those “conditions hav[ing] little or no residual effects”].)

The inference that Dr. Henderson ’s declaration describe d a

risk of only mild

, nonlimiting symptoms is corroborated by

another fact: he encouraged plaintiff to reconsider her resistance

to getting the vaccine before she was terminated. He thought

backing off her stance and complying with the policy would be a

“good solution for her.” This perspective , from her personal

physician charged with her care

, is impossible to reconcile with

any meaningful risk of a disabling condition resulting to plaintiff

from getting the flu vaccine. It is also irreconcilable with

plaintiff’s claim in briefing that she had a disability because she

“cannot get vaccinated.” Clearly

, plaintiff could get vaccinated.

At best

, she chose not to due to risks of unspecified symptoms.

Without evidence that the se symptoms would be sufficiently

burdensome or lasting to amount to a disability

, there is no

question of disability for a jury to consider.20 We note plaintiff’s repeated claim s that contraindications

to getting the flu vaccine are not limited to those recognized by

the CDC

, and that an individual’s physician should determine if

an individual should take the flu vaccine. Plaintiff’s record

citation s for these assertions are to her statement of undisputed

facts

. But tracing the evidentiary support for those facts to their

origin s

— testimony from Dr. Henderson, Dr. Dorratoltaj

, and an

article Dr. Dorratoltaj cited

— and a review of the trial court’s

evidentiary rulings reveals the trial court deemed these facts

inadmissible. Plaintiff does no t challenge these rulings on

appeal. She therefore has no evi dence that conditions other than

those Cedars identifie d are medically recognized

contraindications to getting the flu vaccine. (See Yanowitz

,

supra

, 36 Cal.4th at p. 1037 [summary judgment review does not

consider facts to which objections were made and sustained].)

Plaintiff also asserts in her briefing that

, alternatively,

Cedars perceived her as having a disability. The only evidence

she cites for this claim is Dr. Henderson’s paragraph 10

testimony that she relies on for her claim of actual disability

.

Dr. Henderson’s view that plaintiff face d special risks in getting

vaccinated does not conflict with Cedars’s evidence that it viewed

her as able to saf

ely receive the flu vaccine for want of any

medically recognized contraindication.

Judgment was proper on plaintiff’s disability

discrimination cause of action because she failed to produce

evidence sufficient to create a fact issue concerning an essential

element of her prima facie case, i.e., her claimed disability or the

perception by Cedars of disability

. We therefore need not address

the other elements of plaintiff’s prima facie case.21 v. Legitimate nondiscriminatory r eason ; n o

c laim of p retext

.

Even if plaintiff had mad e a prima facie case for

discrimination of any kind (e.g., physical disability, medical

condition, or otherwise)

, summary adjudication of her disability

discrimination cause of action would still have been proper

because Cedars presented a legitimate, nondiscriminatory reason

for her termination

, and plain tiff fails to argue the reason was

pretextual.

Summary judgment on a FEHA discrimination claim is

appropriate where

, regardless of any dispute concerning the

plaintiff’s prima facie case, the employer presents evidence of a

legitimate, nondiscriminatory motive for its action

, and the

plaintiff fails to provide evidence rebutting the stated reason as

pretextual. ( Guz v. Bechtel National, Inc

. (2000) 24 Cal.4th 317,

357 ( Guz ) .) Reasons are “legitimate” if they are “ facially

unrelated to prohibited bias, and which, if true, would thus

preclude a finding of discrimination .” ( Id. at p. 358, italics

omitted.) Issues that are “ ‘ nondiscriminatory on their face ’ and

‘ honestly believed ’ by [the] employer, will suffice even if ‘ foolish or

trivial or baseless ’ ”; “the ultimate issue is whether [the]

employer ‘ honestly believed in the reasons it offers .’ ” ( Ibid. )

Here, the evidence shows, and plaintiff concedes, that

“Ce dars terminated [plaintiff] because she did not get the [flu]

vaccination .” Cedars presented evidence that i ts mandatory

vaccination policy was a product of concern about patient safety

and guidance from the CDC. In recent years, three patients had

died under circumstances where flu was at least a contributing

factor. CDC guidance in 2016 recommended that all employees

at healthcare facilities, regardless of role or involvement in

patient care, receive the flu vaccine.22 Cedars’s policy for medical exemptions from the flu vaccine

further relied on CDC guidance. I t permitted exemptions only for

reasons the CDC identified as a contraindication and a

precaution for getting the flu vaccine. It did not permit

exemptions for conditions that were not medically recognized

contraindications. The record shows Cedars strictly applied its

policy to its workforce of 15,000 people

. In 2017, 24 employees

sought medical exemptions and Cedars granted only 10. O f the

14 it denied for want of a recognized medical contraindication

,

o nly plaintiff persisted in her refusal to g et the vaccine ; thus,

only plaintiff was terminated as a result. In short, Cedars

terminated plaintiff not because she was or was regarded as

disabled

, but because Cedars regarded her as not disabled. It

considered her capable of safely receiving the flu vaccine and

viewed her doctor’s stated reasons she should not

— reasons that

he himself acknowledge d were not medically recognized

— as

invalid.

Plaintiff nonetheless argues that Cedars’s reason for

termi nat ing her was “discriminat ory on its face.” This is true,

she argues

, because her reason for not getting the vaccine was

that her doctor told her not to. P laintiff presents no authority for

her contention that Cedars was bound to accept Dr. Henderson’s

opinion that, despite presenting no medically recognized

contraindication to the flu vaccine, plaintiff should have been

exempted from the vaccine requirement.

An employer is not bound to accept an employee’s

subjective belief that she is disabled. ( Arteaga

, supra

,

163 Cal.App.4th at p. 347.) Instead, the employer is entitled to

rely on other medical information. ( Ibid .) Here, Cedars relied on

CDC guidance, applied by its own physicians, to conclude there

was no objective evidence of disability. Contrary to plaintiff’s

contention, this did not amount to Cedars “playing doctor” and23

using its status as a healthcare enterprise to evade F EHA.

Cedars adopted a policy recommended by the federal agency

responsible for limiting the spread of disease in the United States

and used that agenc y’s unambiguous guidance in formulating

exceptions. 2 Any employer adopting a similar policy would be

capable of ascertaining whether an exemption applicant checked

a box corresponding to a medically recognized contraindication.

Though plaintiff’s request was communicated through a

physician, it was nonetheless subjective. The information

Dr. Henderson pr ovided Cedars evinced no medically recognized

reason not to get the flu vaccine ; it merely listed reasons that he,

personally, felt plaintiff should not have to get the vaccine

. Indeed, his conclusion facially rested in part on his own views of

the wisdom of Cedars’s all

- employee mandatory vaccination

policy. He stated that plaintiff’s lack of patient contact

warranted excusing her. Nothing in his reasons for seeking an

exemption for plaintiff showed her to be unable to get the flu

vaccine or that the co nsequences of her getting a flu vaccine

would amount to a disability. Dr. Henderson even viewed

plaintiff as sufficiently “able” to get the flu vaccine

, notwithstanding the diagnoses he communicated to Cedars, to

suggest she get it, after it became clear her exemption request

would be denied.

Finally, we acknowledge that plaintiff argues Cedars’s

policy was too expansive and unnecessary. In considering

whether implementing the policy on a workforce

- wide basis was a

legitimate, nondiscriminatory reason for terminating plaintiff,

2 Plaintiff claims Cedars “arbitrarily recognized [the two

contraindications] as the only medical grounds for exemption.”

This is simply false.24

the wisdom of the policy is not at issue. ( Guz

, supra

, 24 Cal.4th

at p. 358 .)

No reasonable factfinder could conclude from this record

that Cedars singled plaintiff out for termination because she had

a physical disability or because she had a medical condition. Its

facially nondiscriminatory policy

, which plaintiff objectively

violated, was objective and object ively applied. Plaintiff does not

attempt to argue otherwise. Her failure to argue pretext in

Cedars’s legitimate, nondiscriminatory reason for terminating

her also requires us to affirm judgment on this cause of action.

b. Failure to e ngage in the i nteractive p rocess

.

Section 12940, subdivision (n), proscribes an employer’s

failure “to engage in a timely, good faith, interactive process with

the employee or applicant to determin e effective reasonable

accommodations, if any, in response to a request f or a reasonable

accommodation by an employee or applicant with a known

physical or mental disability or known medical condition.” ( I bi d. )

Plaintiff argues that Cedars became subject to this duty

when “ [she] and Dr. Henderson made Cedars aware of her

disability.” She asserts that Cedars wrongfully shirked the duty

because it was bound to accept Dr. Henderson’s view that

plaintiff should not get the flu vaccine. Again w ithout citation to

authority, plai ntiff asserts “[i]t is never up to the employer to

determine whether or not an employee suffers from a disability

—

that determination rests exclusively within the purview of the

employee’s treating physic ian.”

Again

, p laintiff is incorrect. Whether a n employee is

disabled is ultimately a question for the court. It is true that a

request to accommodate a nonobvious disability supported by

reasonable medical documentation will ordinarily suffice to

trigger the interactive process duty

. ( Kao v. Univers ity of San

Francisco (2014) 229 Cal.App.4th 437, 450

. ) But, as already25

noted, a n employer is not bound to accept an employee’s

subjective belief t hat she is disabled ( Arteaga

, supra

,

163 Cal.App.4th at p. 347)

, and neither the information

Dr. Henderson provided to Cedars nor the evidence plaintiff used

to oppose summary judgment created a bona fide question of

disability

. Cedars never viewed plaintiff as disabled

, and

plaintiff’s evidence does not establish a fact issue as to whether

she actua lly was.

This court has previously held that an interactive process

claim may lie where a plaintiff is not actually disabled

, but the

employer regarded the employee as disabled. ( See Gelfo v.

Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61

– 62 ( Gelfo ) .)

This holding flowed directly from the conclusion that an employer

has a duty to reasonably accommodate an employee that it

merely perceives as disabled

— a conclusion driven by FEHA ’s

provisions defining “physical disability” to include an employer’s

regarding an employee as disabled

. ( Gelfo, at p p

. 60, 61 ; see also

§§ 12926, subd. (m)(4 ) & ( 5 ), 12926 .1, subd. ( b ) .)

However, we are cited no authority where an employer was

bound to engage in an interactive process with an employee who

claimed disability but was neither disabled nor regarded by the

employer as being disabled. Certainly, an employer rejects an

employee’s claim of disability to eschew the inter active process at

its own peril. If the employee not perceived as disabled later

proves she actually was

, a claim for failure to engage in the

interactive process will lie. But with no disability to

accommodate, and no perception of one, there is no duty to

accommodate and thus no accommodation to discuss. (See

§ 12940, subd. (m) (1) [ duty to accommodate applies only to

“ known physical or mental disability of an applicant or

employee ” ].) Plaintiff’s failure to present evidence sufficient to26

create a triable issue as to the disability on which she predicates

it dooms this cause of action as well.

c. Failure to m ake r easonable a ccommodation

.

S ubject to limited exceptions, s ection 12940,

subdivision ( m ), proscribes an employer’s failure to “make a

reasonable accommodation for the known physical or mental

disability of an applicant or employee. ” ( Id

. , subd. (m)(1). ) Citing

Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373,

plaintiff recites the elements of a claim for failure to reasonably

accommodate as (1) the employee suffered a disability ; (2) the

employee could perform the essential f unctions of the job with

reasonable accommodation; and (3) the employer failed to

reasonably accommodate the employee’s disability. Judgment on

this claim was proper because plaintiff failed to identify a triable

material fact as to her disability.

In def ending her claim, plaintiff mixes and matches

co ncepts of “medical condition” and “disability.” Again, we must

read plaintiff’s referenced medical condition only as one

amounting to a disability since section 12940, subdivision ( m ) (1)

,

makes no mention of medical conditions that do not limit a major

life activity

— it applies only to “physical or mental disabilit[ies]

. ”

( I bi d .)

Plaintiff argues that even if she was not actually disabled,

an employer’s perception of her as disabled can suffice to trigger

the reasonable accommodation requirement. While her legal

proposition is correct (see Gelfo

, sup r a

, 140 Cal.App.4th at

pp. 61

– 62 ), no facts support it s application on this record. She

cites only Cedars’s view of plaintiff as “immunocompromised ” and

its use of her “disability as a justification for her to receive the flu

vaccine.” First, Cedars viewed plaintiff as not disabled

. T here is

no indication that it considered her immunocompromised status

as limit ing her ability to work or get vaccinated

. Second, its27

justification for requiring plaintiff to receive the flu vaccine was

that she was an employee. Its policy applied to all employees

except those with a qualifying religious or medical exemption.

Cedars viewed plaintiff as having no qualifying exemption. That

it considered her immunocompromised status an indication for

receiving the flu vaccine served only to reinforce its c onclusion

that she was not disabled in the way she claimed

— that her

health history made it impossible for her to get the flu vaccine

.

d. FEHA r etaliation

.

S ection 12940, subdivision ( m ), prohibits retaliation by an

employer for requesting an accommodation under that

subdivision

— i.e., for a “ known physical or mental disability

. ”

( Id

. , sub d. (m)(2).) Plaintiff fails to acknowledge the prima facie

case she must make to establish a FEHA retaliation claim

, i.e.,

“ that she engaged in a protected activity, that she was thereafter

subjected to adverse employment action by her employer, and

there was a causal link between the two. ” ( Addy v. Bliss &

Glennon ( 1996) 44 Cal.App.4th 205, 217.) By failing to address

its elements and provide record citations to evidence

demonstrating a fact dispute material to each

, plaintiff offers no

basis to disturb the trial court’s summary adjudication of this

cause of action

. ( See Murchison

, supra

, 60 Cal.App.5th at p. 882

[“our review is limited to contentions adequately raised and

supported in the [appellant’s] brief”].)

Even if this were not the case, plaintiff’s own admissions

negate the prospect of any causal link between her request for an

accommodation and her termination. Plaintiff acknowledges in

briefing that “ Cedars terminated [ her ] because she did not get

the [flu] vaccin ation .” This makes any claim it terminated her for

requesting a reasonable accommodation untenable

.28 e. We affirm judgment on plaintiff’s remaining

“ derivative ” claims

.

Plaintiff argues for reversal as to her remaining claims

—

failure to prevent discrimination and reta liation and wrongful

termination in violation of public policy

— solely on the basis that

they are derivative of her other claims she argues should not

have been summarily adjudicated. As we disagree with plaintiff

that summary adjudication of those other c laims was improper,

she fails to articulate a valid basis for reversal of judgment on her

“derivative” claims.

DISPOSITION

The trial court’s judgment is affirmed

. Defendant is to

recover its costs on appeal.

GRIMES

, J.

WE CONCUR :

STRATTON

, P. J

.

VIRAMONTES, J.Filed 5/19/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DEANNA HODGES

,

Plaintiff and Appellant

,

v.

CEDARS

- SINAI MEDICAL

CENTER

,

Defendant and Respondent

. B297864

Los An geles County

Super

. Ct

. No. BC691836

ORDER CERTIFYING

OPINION

FOR PUBLICATION

[ No c hange in judgment]

THE COURT :

The opinion in the above

- entitled matter filed on April 28

,

2023 , was not certif

ied for publication in the Official Rep orts. For

g o od cause, it now appears that the opinion should be published

in the Official Reports and it is so ordered

. There is no change in the judgment.

_________________________________________________ ___________ ST R ATTON

, P. J. GRIM ES, J. VIRAMONTE S

, J.