Filed 11/16/22 Stanton v. Kings River-Hardwick School Dist. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

STACEY STANTON,

Plaintiff and Appellant,

v.

KINGS RIVER-HARDWICK SCHOOL 

DISTRICT,

Defendant and Respondent.

F082508

(Super. Ct. No. 18C-0215)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Kathy 

Ciuffini, Judge.

George F. Allen; Peck-Law and Kevin Schwin for Plaintiff and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Laura A. Wolfe, Todd W. 

Baxter and Justin G. Donner for Defendant and Respondent.

-ooOoo-
2.

Appellant Stacey Stanton appeals the dismissal of her case following a grant of 

summary judgment in favor of respondent Kings River-Hardwick School District (the 

District). Appellant’s suit consists of three causes of action under the Fair Employment 

and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),1 one for discrimination, one for 

failure to provide accommodation, and one for failure to engage in an interactive process. 

The trial court concluded appellant’s discrimination and failure to provide 

accommodation claims turned on the same issues and determined appellant had failed to 

create a material issue of fact over whether her request for extended leave was finite in 

nature or whether her requested leave would have caused the District undue hardship. 

The court also concluded there was no material issue of fact on appellant’s failure to 

engage in an interactive process claim because appellant was offered employment in open 

positions.

For the reasons set forth below, we reverse the grant of summary judgment on all 

three claims and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was hired by the District as a preschool director and teacher in 2003. 

Her role included curriculum planning and development, along with teaching 

responsibilities that were shared with a second teacher. The preschool program was 

funded by tuition payments from enrolled families and not by general state funding but 

was part of the District’s offerings. Although the program operated at a deficit in several 

years, its goal was to operate as a self-sufficient program.

In 2008, appellant was diagnosed with ovarian cancer and took a period of paid 

leave to recover. Appellant was able to return to the classroom part time in 2009 while 

continuing her treatment. During that time, appellant still suffered side effects from her 

treatment, including weakness, fatigue, foot neuropathy, and intestinal issues. Appellant 

1 Undesignated statutory references are to the Government Code.
3.

was informed that the foot neuropathy and intestinal issues were permanent side effects, 

while her weakness and fatigue issues would gradually improve over time. By 2009, 

however, appellant had obtained complete medical remission and returned to work full 

time for the 2009–2010 school year. She was able to complete her work successfully, 

with only minimal accommodations for her intestinal issues through the 2013–2014 

school year.

In late 2014, appellant was diagnosed with breast cancer and underwent a 

lumpectomy. Appellant took six weeks of paid leave during this time. Appellant then 

successfully finished working the remainder of the 2014–2015 school year while 

undergoing radiation therapy. Appellant stated that her existing intestinal issues and foot 

neuropathy were not worsened by the additional treatment. Appellant also stated her foot 

neuropathy did not affect her ability to do her job.

During the 2015–2016 school year, appellant’s hours were reduced from six per 

day to five per day and her salary was y-rated, meaning it was effectively frozen and a 

new lower salary structure was set for preschool teachers. These changes were based on 

budget issues resulting from low enrollment, the prior year’s deficit of roughly $7,000, 

and the District’s determination that appellant was paid substantially more than any other 

preschool teacher in the area.

Appellant successfully taught through that school year. However, in the summer 

of 2016, still suffering from ongoing issues with fatigue, her foot neuropathy, and her 

intestines, appellant spoke with her doctor about taking time away from work and 

possibly applying for social security disability aid. At the time of the request, appellant 

was told that a year off would not guarantee improvement but that it may be helpful. 

Appellant’s doctor then issued a “Work Status Report.” This report contains two main 

sections. The first is titled “Off Work” and states, “This patient is placed off work from 

7/19/2016 through 7/31/2017.” The second is titled “Other needs and/or restrictions” 

and states appellant “has a serious health condition and is unable to perform her regular 
4.

work duties due to side effects from treatment as well as long-term effects from surgery. 

This is a permanent condition and should be considered for permanent disability.”

Appellant brought the work status report to the District. Appellant states she was 

told she could take her remaining sick leave and upon its exhaustion would receive 

differential pay while a long-term substitute replaced her for the year. In the same 

conversation, appellant informed the District that she would need to be reevaluated at the 

end of the year with her return depending on her health. Appellant was later informed 

that under the District’s written policies, she was only guaranteed 100 days, or roughly 

five months, of leave. Should appellant require additional time, she could request 

approval from the District’s school board who could grant additional time in up to sixmonth periods not to exceed 18 total months.

In response to the work status report, appellant took her guaranteed 100 days of 

leave time. During that time, appellant exhausted her remaining fully paid sick leave and 

was placed on differential leave. Under the differential leave policy, a substitute hired to 

replace appellant is paid from appellant’s budgeted salary and appellant receives any 

remaining funds.

Before appellant’s 100 days expired, she petitioned the board for a continuation of 

her differential leave status through the end of the school year. Appellant provided a 

letter detailing her request. In it, appellant wrote that she had been placed “on a 

mandated one year disability” in order to “recuperate and restore” her health “to return to 

work for the 2017-18 school year.” At the time of the meeting, appellant was under the 

impression that the program’s previous budget cuts were successful, the program was not 

operating at a deficit, and therefore that continuing her leave would not affect the current 

year’s budget due to the nature of differential pay. At no point in the process did 

appellant believe or state that she could definitively return to work at the end of her 

request. Rather, appellant consistently believed and stated that she expected to return to 

work but would be reevaluated to ensure her health permitted it.
5.

The board considered appellant’s request in a closed hearing and did not grant 

appellant any additional leave. Appellant was later told the decision “was just business,” 

that the board looked for but could not find other instances where extended leave was 

granted, and thus that the board believed it could not allow extended leave. Ultimately, 

the board placed appellant on its 39-month rehire list. At the time of the board’s 

decision, appellant was still suffering from the symptoms that had led to her leave, and 

she was not sure how long she could work given those symptoms. Appellant eventually 

obtained another job in 2018. While appellant was sent job openings by the District, she 

chose not to apply for them.

The District explains its decision regarding appellant’s leave request from the 

perspective of budget and enrollment concerns. The District believed appellant to be 

permanently disabled and concluded it was unclear whether she could ever return to 

work. The District’s budget concerns arose from the fact that prior years had ended in 

budget deficits. Its enrollment concerns came from the fact that certain recent years had 

suffered from low enrollment, at least two parents had called asking who would be 

running the preschool program, and the District could not advertise its program without 

knowing who would be involved. In addition, the District had a concern that future 

budget deficits would require closing the preschool program because oversight concerns 

meant that general funds might not be able to be used to offset those future losses.

Relevant to the issues in this case, appellant contests the validity of the reasons 

offered by the District for its actions. Appellant points to facts showing that the year 

before she requested leave, the preschool program ended in a positive financial situation 

and yet still had issues with enrollment for the next year. Further, while at least two 

parents had called with questions about the future program lead, the District had no 

evidence their decisions were affected by appellant’s uncertain return and could not 

identify any instances where advertising for its preschool program identified the next 

year’s teachers. Additional facts showed the District responded to questions from parents 
6.

by stating appellant was anticipated to return to work but that there were no guarantees. 

Appellant also notes the District did not ask her questions about her condition when 

reaching the conclusion that she was unlikely to return to work at the end of one year, nor 

did it engage in discussions about her options other than granting leave.

After appellant’s leave request was denied, the District hired the existing substitute 

as a permanent replacement for appellant’s position in the preschool program. The 

District notes that after this action, appellant continued to suffer from the same effects 

that led to her leave, did not attend her scheduled doctor’s appointment in July 2017, and 

ultimately did not obtain a new job until 2018 at the earliest.

Appellant filed her complaint in this matter in July 2018. In December 2020, the 

trial court entered its order granting summary judgment in the District’s favor. This 

appeal timely followed.

DISCUSSION

As noted, appellant’s complaint identifies three causes of action, all based on 

FEHA. The first cause of action raises a discrimination claim, the second a failure to 

provide reasonable accommodation claim, and the third a failure to engage in the 

interactive process claim. The parties briefing in this case take the claims in a different 

order, focusing first on the reasonable accommodation claim, then the failure to engage 

claim, and finally the discrimination claim. We discuss the claims in the same order as 

the parties’ briefing.

Standard of Review

“A trial court properly grants summary judgment when there are no triable issues 

of material fact and the moving party is entitled to judgment as a matter of law. (Code 

Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment bears the 

initial burden to show the action has no merit—that is, ‘one or more elements of the 

cause of action, even if not separately pleaded, cannot be established, or that there is a 

complete defense to that cause of action.’ (Id., subds. (a), (p)(2).) Once the defendant 
7.

clears this initial hurdle, the burden shifts to the plaintiff to demonstrate a triable issue of 

material fact.” (Doe v. Department of Corrections & Rehabilitation (2019) 

43 Cal.App.5th 721, 732 (Doe).)

“We review the trial court’s ruling on a summary judgment motion de novo, 

liberally construing the evidence in favor of the party opposing the motion and resolving 

all doubts about the evidence in favor of the opponent. [Citation.] We independently 

examine the record to determine whether there are triable issues of material fact and 

whether the moving party is entitled to summary adjudication as a matter of law.” (Doe, 

supra, 43 Cal.App.5th at p. 732.) The trial court’s stated reasons for granting summary 

judgment do not limit the scope of our review, and we may affirm summary judgment if 

any of the grounds asserted in the underlying motion support the trial court’s judgment. 

(Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 47.)

Appellant’s FEHA Failure to Provide Reasonable Accommodation Claim

Appellant’s second cause of action alleges the District failed to provide a 

reasonable accommodation for appellant’s known disability as required under FEHA. 

Under this aspect of the law, an employer must “provide reasonable accommodation for 

an employee’s known disability, unless the employer demonstrates that the 

accommodation would produce ‘undue hardship ... to its operation.’ (§ 12940, 

subd. (m).) However, ... FEHA does not prohibit an employer from discharging an 

employee with a physical disability or medical condition who ‘is unable to perform his or 

her essential duties even with reasonable accommodations ....’ (§ 12940, subd. (a)(1).)” 

(Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1337.)

“A reasonable accommodation is any ‘ “modification or adjustment to the 

workplace that enables the employee to perform the essential functions of the job held or 

desired.” ’ [Citation.] Reasonable accommodations include ‘[j]ob restructuring, parttime or modified work schedules, reassignment to a vacant position, ... and other similar 

accommodations for individuals with disabilities.’ ” (Swanson v. Morongo Unified 
8.

School District (2014) 232 Cal.App.4th 954, 968–969, italics omitted, first bracketed 

insertion added (Swanson).) “ ‘[A] reasonable accommodation can include providing the 

employee accrued paid leave or additional unpaid leave for treatment ... ’ provided it is 

likely that, at the end of such leave, the employee will be able to perform his or her 

employment duties.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193–

1194.) Likewise, “[h]olding a job open for a disabled employee who needs time to 

recuperate or heal is in itself a form of reasonable accommodation and may be all that is 

required where it appears likely that the employee will be able to return to an existing 

position at some time in the foreseeable future.” (Jensen v. Wells Fargo Bank (2000) 

85 Cal.App.4th 245, 263.) “Determining whether a proposed accommodation (medical 

leave in this case) is reasonable, including whether it imposes an undue hardship on the 

employer, requires a fact-specific, individualized inquiry.” (Nunes v. Wal-Mart Stores, 

Inc. (9th Cir. 1999) 164 F.3d 1243, 1247 (Nunes).)2

The District provides four points on why summary judgment was proper on 

appellant’s failure to accommodate claim. First, the District contends appellant was not a 

qualified individual because there was no evidence in the record that appellant could ever 

return to work. Second, the District argues that appellant’s request for one year of leave 

was unreasonable as a matter of law because the only evidence in the record suggests 

appellant’s leave was indefinite. Third, the District alleges that its decision to place 

appellant on a 39-month rehire list was a reasonable accommodation. Fourth, the District 

states it had no obligation to grant the leave request because doing so would cause an 

undue hardship.

2

In FEHA cases, California courts have regularly recognized the similarities between 

FEHA and the federal Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et 

seq.), relying upon parallel analyses in federal cases as persuasive authority. (See Swanson, 

supra, 232 Cal.App.4th at p. 969, fn. 3; Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 

224, fn. 7.) To the extent this court relies on federal authorities, it does so based on this 

historical recognition and its own determination the authorities and their analyses are persuasive.
9.

We begin by considering the first two points raised by the District. Both turn on 

an assertion that the record in this case contains no material factual dispute over the 

nature of appellant’s required medical leave. According to the District, the only evidence 

in the record that reflects when appellant could return to work demonstrates that her 

potential for return was always equivocal. The District contends the work status report 

from appellant’s doctor stated she “was ‘unable to perform’ her regular work duties, with 

the condition being considered a ‘permanent condition and should be considered for 

permanent disability.’ ” It then buttresses its claim by stating appellant herself could not 

guarantee she would ever be able to come back to work and stating that, despite writing 

she anticipated being taken off medical disability at the conclusion of one year, appellant 

admitted this “ ‘wasn’t a for sure thing.’ ” The District further notes that appellant does 

not claim she obtained a release to return to work until sometime after August 28, 2017. 

Based on these facts, the District contends the only reasonable conclusion a trier of fact 

could reach was that appellant’s requested leave was for an indefinite period of time, 

particularly when viewing the facts as known in January 2017, when extended leave was 

denied.

We do not agree with the District’s analysis of the facts. As this case arises on 

summary judgment, we are obligated to draw all reasonable inferences from the evidence 

in the light most favorable to appellant. (Doe, supra, 43 Cal.App.5th at p. 732.) The 

District’s factual analysis goes too far in asserting that no reasonable inference could be 

drawn from the evidence that would preclude summary judgment.

As noted, the work status report itself contains only two main sections. The first 

states, “This patient is placed off work from 7/19/2016 through 7/31/2017.” The second 

states appellant “has a serious health condition and is unable to perform her regular work 

duties due to side effects from treatment as well as long-term effects from surgery. This 

is a permanent condition and should be considered for permanent disability.”
10.

At the outset, there is ambiguity in the language and structure of the note. The 

second section contains a potential conflict in meaning as appellant is described as having 

a serious health condition and as being unable to perform her regular work duties, both 

descriptions apparently resulting from side effects from treatment and long-term effects 

from surgery. The next sentence then vaguely claims “[t]his is a permanent condition” 

without specifying whether the permanent condition is the serious health condition, the 

inability to perform work duties, or both. That same sentence then states the condition 

“should be considered for permanent disability” without indicating appellant’s situation 

is, in fact, a permanent disability. This ambiguity is furthered by the clear indication in 

the first section that only a roughly one-year placement off work was ordered. This court 

sees no reason why a jury could not conclude from this language that appellant’s serious 

health condition was permanent but that only a year off work was necessary to deal with 

her current inability to perform work duties.

Nor is there a paucity of other evidence to support such an understanding. 

Appellant provided evidence that she was able to successfully complete her duties prior 

to the leave request, even though she suffered from continued effects of her prior 

treatments, and that her symptoms had not worsened. This permits a reasonable 

inference that additional recovery over the year could well place her in a position to 

return to work.

While the District points to various pieces of evidence implying appellant’s leave 

was always indefinite in nature, its arguments fail to prove that a jury could not look at 

the evidence and conclude a one-year leave was the extent of the currently understood 

request. Appellant’s letter requesting leave with differential pay states directly that it was 

“decided it was best for my health to take a one year disability for the 2016-17 school 

year, in order to recuperate and restore my health to return to work for the 2017-18 

school year” and requests such leave only “through the end of the 2016-17 year.” This 

request generally matched with appellant’s initial belief she needed recuperation time and 
11.

the potential scope of her doctor’s work status report. Moreover, there is evidence that 

the District told interested parents that, while there was no guarantee, appellant’s eventual 

return was expected. Such representations undercut the District’s claim that the only 

reasonable inference from the available evidence was that appellant’s leave was 

indefinite. If such were true, there would be no plan to have her return.

We thus reject the District’s argument that appellant’s request for leave was 

improper as a matter of law because it was indefinite. The case law is clear that a finite 

period of leave can be considered a reasonable accommodation, and the record supports a 

potential inference that appellant’s request for leave was finite in nature. (See Jensen v. 

Wells Fargo Bank, supra, 85 Cal.App.4th at p. 264.)

While we recognize that there was no guarantee appellant would be able to return 

to work at the end of her ordered time off, we find such a fact, standing alone, insufficient 

to warrant summary judgment. Indeed, we see no difference between the scenario 

presented in this case and that presented in Nunes, supra, 164 F.3d 1243.3 In Nunes, the 

plaintiff went on extended medical leave due to a fainting disorder. Nunes’s doctor 

initially stated she could return to work by May 1, 1995, but this date was extended 

multiple times, with the last extension until December 1, 1995. Despite this, Nunes’s

employment was terminated in October 1995. (Id. at pp. 1245–1246.)

The district court granted summary judgment on a failure to accommodate claim 

under the ADA on the premise that Nunes was not a qualified employee because she was 

3

In following Nunes, we find the District’s citation to the nonpublished opinion in

Stevenson v. Abbott Labs. (C.D.Cal. Mar. 21, 2014, case No. SACV 13-579-DOC (RNBx)) 2014 

U.S.Dist. Lexis 199793 (Stevenson) unpersuasive. Although there are similarities in the two fact 

patterns, Nunes’s recognition of the fact-based nature of the reasonableness of the requested 

accommodation is the stronger analysis. While we recognize that a leave request can be deemed 

indefinite as a matter of law, more facts than a single expected return-to-work date and 

uncertainty as to the end result of treatment are needed to reach that point. We take no position 

on when multiple extensions of deadlines or the statement of a treating physician may result in 

facts sufficient to determine as a matter of law that a leave request is indefinite. We only note 

that the facts in this case do not reach that point.
12.

incapacitated and unable to work at the time of termination. (Nunes, supra, 164 F.3d at

pp. 1246–1247.) The Ninth Circuit reversed, finding that a focus on Nunes’s disability 

during the period of her medical leave misapplied the ADA’s qualified individual 

requirement. (Nunes, at p. 1247.) Because leave may be a valid accommodation, the 

question that must be asked is whether the specific leave requested is reasonable—a 

highly factual inquiry. (Ibid.) We see this inquiry as distinct from whether the currently 

requested leave will fully resolve any issues, particularly given the history in Nunes of 

extensions.

In Nunes’s case, a question of fact on the reasonableness of her leave request 

existed because she had been a good employee prior to her leave, had gone on leave with 

her employer’s blessing, had not exceeded the potential for leave contained under her 

employee policies, and was learning methods to reduce stress and thereby improve her 

ability to work when terminated. (Nunes, supra, 164 F.3d at p. 1247.)

In this case, the record closely parallels that discussed in Nunes. Appellant 

successfully completed her job prior to her medical leave request, having led the 

preschool program the year before. Appellant went on leave after a doctor’s 

determination she could not work due to her current medical condition. Appellant’s leave 

request with differential pay fell under the District’s written policies, which provided for 

up to 18 months of leave if approved. And at the time appellant was terminated, she was 

continuing to undergo treatment meant to alleviate her medical condition.

As in Nunes, the determination whether appellant’s proposed accommodation of 

medical leave with differential pay was reasonable requires a fact-specific inquiry that 

balances several factors. Further, as in Nunes and as discussed above, the record 

evidence at least permits an inference that the request for leave through the remaining 

school year was reasonable given appellant’s prior ability to perform the job and the 

expectation she would do so again after the leave. Accordingly, we find there are 
13.

material issues of fact concerning whether appellant’s request for leave was a reasonable 

accommodation under FEHA.

We next turn to the District’s fourth point, that it had no obligation to grant the 

leave request because doing so would cause an undue hardship. The District contends no 

material issue of fact exists, in part, because “there is no evidence to rebut the uncertainty 

of [appellant’s] return” and, thus, no reasonable argument that granting leave would not 

have a budgetary impact on the District. The District then points to record evidence it 

claims supports its position that granting leave would have caused a financial hardship. 

The District’s focus in this claim is its desire to have the preschool program be 

financially stable. Thus, the District identifies evidence of prior low enrollment numbers, 

the resulting need to reduce teacher pay and hours, parent questions about who would be 

teaching, and the District’s desire to market the program to the community as evidence 

that an inability to confirm appellant’s availability to teach would result in financial 

losses for the program and thus risk its continued existence.

Again, however, we conclude that the District’s position relies too heavily on its 

own interpretation of the facts, to the exclusion of reasonable inferences that can be 

drawn in appellant’s favor. As appellant points out, the facts demonstrate that the current 

year’s budget already accounted for her salary and that the District’s leave policy 

deducted the cost of a replacement from what she could receive on differential leave. 

Thus, it can be reasonably inferred that granting appellant continuing leave would not 

affect the preschool’s current budget or financial stability.

With respect to future years, although the District raises concerns about its ability 

to enroll students or market its program, none of the evidence mandates a conclusion that 

the District would suffer a hardship if leave was granted. While enrollment was low the 

prior year, the District’s evidence does not tie that issue to the lack of a permanent 

teacher. While teacher salaries and hours were previously adjusted, appellant’s salary 

was already budgeted into the current year and the District’s evidence lacks any 
14.

indication that the current year was continuing to operate at a deficit. Although some 

parents asked about the teacher for the upcoming year, the District has no evidence those 

parents failed to enroll their children because of any lack of clarity on the current or 

future teacher. And while the District’s evidence shows it wanted to market its preschool 

program in the community, appellant’s evidence indicates that the District’s marketing 

material never identified the program’s teacher, even though one had been hired after 

appellant’s leave was denied.

For her part, appellant points to evidence showing that when she first suggested 

taking leave, her supervisor told her the leave request would be fine and made no 

statements reflecting any budget or enrollment concerns. Appellant also identifies 

statements from at least one board member that reasonably imply one basis for denying 

the leave was “business,” while another was the fact that the District was unaware of 

previously granting leave for that length of time. Although open to interpretation, both 

identified statements can reasonably support an inference that budgetary concerns were 

not the primary reason for rejecting appellant’s leave request, even if such concerns are 

shown to exist. Given the evidence does not demand the conclusions the District relies 

upon to demonstrate a financial hardship, we conclude it is reasonable for a jury to 

conclude from the evidence as a whole that no financial hardship would arise from 

granting additional leave to appellant. Indeed, the evidence appears to at least 

moderately imply that knowledge of the teacher for an upcoming year is only minimally 

relevant to parents at best. As such, material questions of fact remain as to whether the 

District would have suffered an undue hardship in granting the leave request.

Finally, we reach the District’s third point, which asserts that it provided a 

reasonable accommodation when it placed appellant on a 39-month rehire list. Based on 

the district’s written policies cited by appellant, the 39-month rehire list at issue is 

governed by Education Code section 45195. Under this statute, if at “any time, during 

the prescribed 39 months, the employee is able to assume the duties of his or her position 
15.

the employee shall be reemployed in the first vacancy in the classification of his or her 

previous assignment.” (Ed. Code, § 45195.)

The District argues this constitutes a reasonable accommodation in part because it 

provides the same reassignment preference available under FEHA when a vacant position 

is available at the time of disability. We do not agree. Termination or separation 

resulting in a statutory right to preferential rehiring if a position is available is not a 

reasonable accommodation. (See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 

166 Cal.App.4th 952, 974 (Nadaf-Rahrov) [noting that a reasonable accommodation is “a 

modification or adjustment to the workplace that enables the employee to perform the 

essential functions of the job held or desired”].) Rather it is a path to reemployment 

offered under the law that, in the context of FEHA, follows a failure or inability to 

provide a reasonable accommodation. Nor is this path equivalent to FEHA’s 

reassignment preference, which looks to what an employee can do at the time of 

disability and grants preference for reassignment at that time, not after the employee has 

reached full working potential. Indeed, if no position becomes available, the rehire 

provision would not allow appellant to complete the essential functions of her job in the 

same way that a reasonable accommodation would if one were available. Accordingly, 

while placement on a 39-month rehire list is a valuable benefit granted under the law, it is 

not a reasonable accommodation to a disability under FEHA and cannot be utilized to 

avoid granting a reasonable accommodation should one exist.

Appellant’s FEHA Failure to Engage in Interactive Process Claim

Appellant’s third cause of action alleges the District failed to engage in a timely, 

good-faith interactive process under FEHA. Under FEHA, it is “an unlawful 

employment practice” for “an employer or other entity covered by this part to fail to 

engage in a timely, good faith, interactive process with the employee or applicant to 

determine effective reasonable accommodations, if any, in response to a request for 

reasonable accommodation by an employee or applicant with a known physical or mental 
16.

disability or known medical condition.” (§ 12940, subd. (n).) Violation of this statutory 

provision is considered an independent cause of action from merely failing to provide an 

accommodation. (Wilson v. County of Orange, supra, 169 Cal.App.4th at p. 1193.)

“The employee must initiate the process unless his or her disability and the 

resulting limitations are obvious. Once initiated, the employer has a continuous 

obligation to engage in the interactive process in good faith. [Citation.] ‘Both employer 

and employee have the obligation “to keep communications open” and neither has “a 

right to obstruct the process.” [Citation.] “Each party must participate in good faith, 

undertake reasonable efforts to communicate its concerns, and make available to the 

other information, which is available, or more accessible, to one party. Liability hinges 

on the objective circumstances surrounding the parties’ breakdown in communication, 

and responsibility for the breakdown lies with the party who fails to participate in good 

faith.” ’ ” (Swanson, supra, 232 Cal.App.4th at pp. 971–972, first bracketed insertion 

added.)

The District raises two broad arguments as to why summary judgment was proper 

on appellant’s interactive process claim. In the first, the District relies on its assertion 

that there was no reasonable accommodation available at the time the interactive process 

was to take place to argue that no interactive process was required. As part of this 

argument, the District contends that no interactive process is required when leave is the 

only available accommodation. In the second, the District asserts that an interactive 

process did occur because the District relied on the information provided by appellant

that leave was the only available accommodation and determined that an undue hardship 

would arise from that accommodation.

The District’s positions are not compelling. As discussed above, appellant has 

raised a material issue of fact over whether her request for additional leave time was a 

reasonable accommodation. Contrary to the District’s arguments, we do not agree that 

there is no obligation to engage in the interactive process when an employee identifies 
17.

leave as their requested reasonable accommodation. We again reject the District’s 

attempt to rely on the nonpublished opinion in Stevenson, supra, 2014 U.S.Dist. Lexis 

199793. In Stevenson, it was undisputed that the employee was totally disabled and 

could perform no work at the time leave was requested. The court concluded from this 

that there was no reasonable accommodation available, besides leave, and noted there 

was no indication additional leave was requested.

Here, appellant’s doctor stated she was to be taken off work because she “has a 

serious health condition and is unable to perform her regular work duties.” Unlike 

Stevenson, appellant clearly requested accommodation in the form of additional leave. 

Moreover, unlike Stevenson, it is far from clear from the doctor’s note that no further 

accommodation could be made in the immediate or near-term future that would allow for 

potential reassignment or permit appellant’s leave request to be tailored to avoid any 

alleged undue hardship claimed by the District.

More importantly, we reject the notion that there is no obligation to engage in an 

interactive process where leave is the only available reasonable accommodation. NadafRahrov, the case cited in Stevenson, does not make such a broad statement. Rather, in 

Nadaf-Rahrov, the court discussed the now well-recognized requirement that one cannot 

impose liability under the statute when no reasonable accommodation is possible. 

(Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 980.) This is a far cry from the District’s 

claim that the interactive process is not required when there is a reasonable 

accommodation, but that accommodation is limited to leave. Accepting such a position 

would contradict multiple published cases since Nadaf-Rahrov that have expressly found 

such a claim could be raised where leave was the requested accommodation. (See Moore 

v. Regents of University of California (2016) 248 Cal.App.4th 216, 243–244 [summary 

judgment on interactive process claim was improper where employer regarded employee 

as disabled, employee requested leave as a reasonable accommodation, and employee 

was terminated prior to “engaging with her further to determine whether such 
18.

accommodation would sufficiently address her perceived disability or whether other or 

different accommodations might reasonably be provided”]; Soria v. Univision Radio Los 

Angeles, Inc. (2016) 5 Cal.App.5th 570, 599–600 [request for leave to have surgery as 

reasonable accommodation sufficient to preclude summary judgment on interactive 

process claim where there was no evidence employer “took any steps to work with 

[employee] to identify a reasonable accommodation” after request]; Shirvanyan v. Los 

Angeles Community College Dist. (2020) 59 Cal.App.5th 82, 98–99, 102 [remanding for 

damages trial on failure to accommodate and interactive process claims regarding wrist 

injury for which finite leave was the reasonable accommodation].)

We also reject the District’s claim that summary judgment is proper because it 

reasonably relied on appellant’s doctor’s work status report and determined leave would 

create an undue hardship. While the interactive process is meant to be an exchange of 

information, “ ‘there may be some cases in which it is reasonable for the employer 

affirmatively to seek out a medical release ... or at least to clarify for the employee 

exactly what is required before the employee can be reassigned’ ” or otherwise 

accommodated. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 987, quoting Smith v. 

Midland Brake, Inc. (10th Cir. 1999) 180 F.3d 1154, 1173–1174.) Likewise, “In some 

circumstances, an employer may need to consult directly with the employee’s physician 

to determine the employee’s medical restrictions and prognosis for improvement or 

recovery.” (Nadaf-Rahrov, at pp. 988–989.)

In this case, appellant’s evidence can support a claim the District was responsible 

for any breakdown in communication and thus breached its obligation to engage in an 

interactive process. Appellant’s evidence supports the conclusion that she brought her 

doctor’s work status report and related leave request to the District. In response, the 

District concluded appellant’s request meant that no other options were available and 

failed to engage in any further meaningful interactive process. Indeed, the District 

conceded it viewed the process as one that “didn’t require back and forth” and effectively 
19.

left it to appellant to inform them when she could return to work or to identify other 

potential accommodations. Moreover, the employee designated as the District’s 

coordinator for nondiscrimination in employment to handle such issues under the ADA 

admitted they were not aware of their role and were not involved in appellant’s 

accommodation discussions.

As in Nadaf-Rahrov, the jury could find it unreasonable for the District to 

unilaterally determine leave was an insufficient accommodation because appellant’s 

“condition was not going to improve in the near future.” (Nadaf-Rahrov, supra, 

166 Cal.App.4th at p. 988.) This is further buttressed by our prior conclusion that an 

issue of fact exists regarding whether the District would, in fact, suffer undue hardship in 

granting the leave request. To the extent the District caused a breakdown in 

communication under the interactive process because it wrongly assumed it had no 

obligation to engage in the process at all, it can be held liable for that failure, precluding 

summary judgment.

Appellant’s FEHA Discrimination Claim

Finally, appellant’s first cause of action alleges the District improperly terminated 

her employment, reduced her hours, denied her a raise, and denied her of other benefits, 

thereby discriminating against her under FEHA. Under FEHA, it is “an unlawful 

employment practice ... [¶] [f]or an employer, because of the ... physical disability ... [or] 

medical condition ... of any person ... to bar or 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).) An employer, however, is not 

prohibited “from refusing to hire or discharging an employee with a physical ... disability 

... if the employee, because of a physical ... disability, is unable to perform the 

employee’s essential duties even with reasonable accommodations.” (§ 12940, 

subd. (a)(1).)
20.

The elements for a FEHA discrimination claim thus require one to prove they 

“(1) suffered from a disability, (2) could perform the essential duties of a job with or 

without reasonable accommodation, and (3) was subjected to an adverse employment 

action because of the disability or perceived disability.” (Zamora v. Security Industry 

Specialists, Inc. (2021) 71 Cal.App.5th 1, 37–38 (Zamora).) At the summary judgment 

stage, these cases are normally analyzed under the three-step test established by the 

United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 

792. (Zamora, at p. 31.) Under this test, the court first considers whether the employee’s 

evidence permits a prima facie showing of discrimination. (Ibid.) If so, the court then 

considers whether the employer can provide evidence of a legitimate, nondiscriminatory 

reason for the employment action. Finally, if the evidence supports such a finding, the 

court asks whether the evidence also allows a finding that the employer’s reasoning was 

merely pretextual. (Id. at p. 32.) The McDonnell Douglas framework was adopted for 

dealing with cases where primarily circumstantial evidence of discrimination exists. 

Thus, where direct evidence of discrimination exists, the framework can be bypassed, and 

summary judgment becomes proper only where the evidence compels a conclusion the 

employee would have been subjected to the same employment decision without reference 

to the unlawful factor. (Id. at p. 34.)

The parties’ first dispute on this claim is whether the McDonnell Douglas 

framework should be applied. Appellant contends “it is not reasonably in dispute” that 

appellant’s “disability/medical condition was a substantial motivating factor” in the 

determination to deny her leave. But this is not the proper test. Whether something is 

reasonably in dispute is separate from whether that is because direct evidence supports 

the point contested.

In this case, appellant’s evidence of discrimination is the known existence of her 

disability, her potential ability to complete her job with reasonable accommodation, her 

employer’s potential misinterpretation of her condition, and the denial of her leave 
21.

request despite it falling within existing policy. These facts parallel those considered 

insufficient to demonstrate direct evidence of discrimination noted in Zamora, supra, 

71 Cal.App.5th at page 37. In Zamora, those facts were the failure to report an injury, 

denial of requests for modified work, failure to communicate with the employee, 

termination based on absences attributable to the claimed disability, and knowledge of 

the claimed disability on the part of the employer. (Ibid.) In both cases, the record lacks 

evidence that can prove discrimination “without inference or presumption” in the way 

that “comments that demonstrate discriminatory animus and a causal relationship 

between those comments and the adverse employment action,” the quintessential form of 

direct evidence, can. (Id. at p. 35.) We thus conclude this claim is properly analyzed 

under the McDonnell Douglas framework.

Under the McDonnel Douglas framework, appellant is required to demonstrate the 

existence of a prima facie case. With respect to a FEHA discrimination claim, the first 

two elements of such a claim are often analyzed in the context of demonstrating one is a 

qualified employee. (See Green v. State of California (2007) 42 Cal.4th 254, 263–264 

[holding it is plaintiff’s burden to prove they are qualified to sue, meaning they are an 

employee with a disability who can perform the essential duties of the employment 

position with reasonable accommodation].) As one of its arguments supporting summary 

judgment, the District claims that appellant is not such a qualified employee because her

“disability rendered her completely unable to perform her job, even if extended leave 

were to be determined a reasonable accommodation.” We rejected that argument in the 

context of appellant’s failure to accommodate claim and thus reject the argument here as 

well. As previously discussed, the record evidence creates an issue of fact regarding the 

nature of appellant’s leave request and whether it could be considered a request for 

indefinite leave or a reasonable request for a definite period of leave, which could result 

in appellant being able to return to work. Accordingly, an issue of fact exists as to 

whether appellant was a qualified employee.
22.

The District also claims summary judgment was proper at the first stage of the 

McDonnell Douglas analysis since there was no evidence the District took an adverse 

employment action against appellant because of a protected characteristic. Relying on a 

claim that appellant has waived all claims of adverse action aside from the refusal to 

grant her leave request, the District argues that a mere failure to accommodate cannot 

constitute an adverse employment action under Doe, supra, 43 Cal.App.5th at pages 735–

736. We do not agree.

This court has reviewed the record below and does not find evidence that appellant 

limited herself to a discrimination claim based on the District’s failure to grant her leave 

request. Rather, appellant’s concession stated she was abandoning all aspects of the 

claim aside from “termination of her employment motivated by disability 

discrimination/medical condition.” However, even if the District’s assertion were 

correct, summary judgment would still not be proper in this case.

Appellant’s evidence shows that her leave request fell within the District’s written 

policies for such leave. Further, as discussed previously, appellant has marshalled 

evidence that permits a reasonable inference that the District denied appellant’s leave 

request because it incorrectly determined that her medical condition prevented her from 

returning to work at the end of the requested leave period and that it was this conclusion 

that created additional concerns over budgeting, marketing, and preparedness issues 

related to the preschool program. Finally, appellant demonstrated that the denial of her 

leave resulted in her being placed on a 39-month rehire list, a fundamental change in her 

employment conditions.

This type of evidence is fundamentally different from that discussed in Doe. In 

Doe, the plaintiff’s evidence only demonstrated a “relatively minor conduct that while 

potentially angering or upsetting to Doe, did not threaten to materially affect the terms, 

conditions, or privileges of his job.” (Doe, supra, 43 Cal.App.5th at p. 735.) Even the 

denials of Doe’s accommodation requests only resulted in his need to use existing leave 
23.

and did not alter the terms of his employment. (Ibid.) In contrast, here the District’s 

potentially incorrect view of appellant’s condition resulted in the denial of leave available 

under the District’s written policies and ultimately resulted in a fundamental change in 

appellant’s employment conditions. This change constitutes evidence of an adverse 

employment action.

With respect to the discrimination claim, the final argument supporting the grant 

of summary judgment concerns the third step of the McDonnell Douglas framework. On 

this point, the District argues that appellant’s evidence is insufficient to demonstrate its 

stated reasons for denying her leave request were pretextual.4 The District points out that 

appellant provided virtually no argument on this point, which would warrant deeming the 

claim forfeited. In reply, appellant concedes that her argument was sparse, but argues 

this does not warrant a forfeiture because a fundamental argument throughout her brief 

was that the District’s claim of undue hardship was not sufficient to warrant summary 

judgment and that same analysis applies to any claims of pretext because the allegedly 

nondiscriminatory reasons offered were the same as those for the undue hardship claims.

We recognize, in line with the District’s argument, that forfeiture of this issue 

would be warranted in most circumstances. However, appellant’s direct concession that 

her argument in support of pretext is based on the core arguments raised in opposition to 

the District’s undue hardship positions and the heavily factual nature of the third prong of 

the McDonnell Douglas test leaves us unconvinced forfeiture is proper here. (See 

Swanson, supra, 232 Cal.App.4th at p. 965 [“The trial court decides the first two stages 

of the McDonnell Douglas test as questions of law. If the plaintiff and defendant satisfy 

their respective burdens, the presumption of discrimination disappears and the question 

whether the defendant unlawfully discriminated against the plaintiff is submitted to the 

4 There is no dispute that the District articulated facially valid nondiscriminatory reasons 

for its decisions.
24.

jury to decide whether it believes the defendant’s or the plaintiff’s explanation.”].) In this 

case, we have reviewed the District’s claims that granting leave would cause an undue 

burden because of budgeting, marketing, and preparedness concerns and found that 

appellant has raised a legitimate, factual issue with respect to the District’s purported 

reasons for denying leave. As appellant satisfied her prima facie showing to warrant a 

presumption of discrimination and raised an issue of fact regarding the legitimacy of the 

District’s showing of nondiscriminatory reasons for its actions, we conclude appellant has 

done enough in her argument to both preserve the issue and demonstrate summary 

judgment was not proper. (See Zamora, supra, 71 Cal.App.5th at pp. 59–62 [sufficient 

evidence of pretext to overcome summary judgment can be based on failure to engage in 

interactive process, timing of employers action, employee’s prior positive job 

performance, and lack of evidence of hardship in accommodating the disability].)

Appellant brought forth evidence that the preschool program was not suffering 

financial shortfalls when the leave decision was made, that the District does not advertise 

the teacher when marketing the preschool, that appellant was able to successfully lead her 

class even when suffering from her symptoms, and that there was a legitimate issue of 

fact regarding whether her leave request was definite or indefinite. These facts permit 

more than a mere inference that the District’s decision additional leave was inadequate 

“was wrong or mistaken,” but rather support a plausible inference the District’s stated 

reasons for denying leave were false. (See Wills v. Superior Court (2011) 

195 Cal.App.4th 143, 160 [employee must submit evidence employer’s stated reason was 

untrue or pretextual, not merely that it was wrong or mistaken]; Soria v. Univision Radio 

Los Angeles, Inc., supra, 5 Cal.App.5th at pp. 594, 597 [pretext can be found where 

proffered reason had no basis in fact and can be shown by inconsistencies and 

contradictions in the evidence coupled with additional factors showing disability was a 

motivating factor].) Ultimately, the evidence is sufficient to place before the jury the 

question whether the District’s stated reasons for denying appellant’s leave requests were 
25.

legitimate concerns or merely cover for an allegedly incorrect and improper 

determination that leave was improper because appellant was totally disabled.5

DISPOSITION

The judgment is reversed, and the matter is remanded for further proceedings. 

Costs are awarded to appellant.

HILL, P. J.

WE CONCUR:

DETJEN, J.

DE SANTOS, J.

5 Appellant also raised an issue regarding the exclusion of evidence in support of her 

opposition to summary judgment. As the court has reversed the grant of summary judgment 

without reference to this evidence, it need not reach this argument.