Filed 10/15/19 Osburn v. Rideout Memorial Hospital

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yuba)

—-

KRISTINA OSBURN,

Plaintiff and Appellant,

v.

RIDEOUT MEMORIAL HOSPITAL,

Defendant and Respondent.

C085844

(Super. Ct. No. CVCV150001101)

Defendant Rideout Memorial Hospital (Rideout) dismissed plaintiff Kristina Osburn from her nursing position while she was on medical leave for a physical disability. She filed this action alleging handicap discrimination, failure to accommodate, discrimination or retaliation for a request for medical leave, and the failure to engage in the interactive-accommodation process. The trial court granted summary adjudication to Rideout on the first three claims and a derivative claim of dismissal in violation of public policy, along with Osburn’s prayer for punitive damages. Following a trial on her remaining theory of liability, a jury found in favor of Rideout. Osburn appeals from the subsequent judgment.

Osburn contends there were triable issues of fact on the counts as to which the trial court granted summary adjudication. She also argues that the trial court erred in refusing her request and granting Rideout’s request for special instructions at trial. We do not find any error with respect to the substantive counts, mooting her argument regarding the prayer for punitive damages. We thus will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Osburn does not contend with respect to her appeal from summary adjudication that there are disputed facts, instead asserting that these facts give rise to issues that only a jury must resolve. Nor does she identify any evidence at trial that further illuminates the analysis on appeal or challenge the sufficiency of any other evidence to support the jury’s verdict on her surviving count. We therefore present the facts as set out in her briefing on appeal without distinguishing between the sources.

In July 2011, Rideout hired Osburn, and she transferred to a position in the cardiac catheterization lab in 2012. She later received a bachelor’s degree in nursing in 2015. Beginning in 2014, her face, arms, hands, and joints started to become severely swollen, and she had shortness of breath. These symptoms grew progressively worse over several months. As a result, her ability to arrive at work punctually and carry out her duties waned. Rideout accommodated her condition, shifting job responsibilities to colleagues and providing flexibility in her work hours.

By April 2015, Osburn’s doctor provided a note which stated without elaboration that she “is unable to perform normal work duties due to an illness effective 04/02/2015. [¶] She may return to work on 06/15/2015.” Rideout granted medical leave through that date.

On June 9, 2015, Osburn provided a note from her doctor which again stated without elaboration that she “is not able to return to work on 06/15/15. [¶] She may return to work on 09/01/15 without restrictions.” Rideout again granted medical leave (exhausting the leave available) and granted the balance of time as a personal leave of absence.

In August 2015, Osburn’s doctor developed a working diagnosis of diffuse connective tissue disorder, a form of inflammatory arthritis. On August 11, 2015, her doctor sent another terse note stating only that she was “not able to return to work on 09/01/15. [¶] She may return to work on 10/15/15 without restrictions.” Rideout approved further personal leave of absence through that date. As the trial court noted in its ruling on the motion for summary adjudication, Osburn was notified at this time that her “ ‘return to work date is October 15, 2015. If you are unable to return to work on the above noted date due to a serious health condition, it is necessary for you to contact [Rideout] to discuss available return to work options.”

On October 9, 2015, Osburn’s doctor submitted yet another abbreviated note stating only that she was “not able to return to work on 10/15/15. [¶] She may return to work on 01/25/16 without restrictions.” At this point, aware only that Osburn’s doctor had incorrectly asserted three times that she would be able to return to work, and not having any other information on her condition or any possible restrictions that might allow her to return to work, Rideout perceived that Osburn’s request for leave was indefinite. Rideout therefore contacted Osburn on October 13 and asked her to get a clearance to return to work with restrictions from her doctor. At this time, Osburn noted she would not be able to provide CPR, a necessary job function. On the following day, Rideout suggested to Osburn that she obtain a note recommending an additional two-week leave in order to have time to consult with her doctor and identify appropriate limits that would allow her to return to work. (At her recent October appointment with her doctor, they had not discussed any restrictions that might allow her to return to work.) When she was unable to provide such a note by October 15, Rideout told her that she would be medically separated from employment on the following day and was encouraged to reapply for employment with or without restrictions when she was capable.

Instead, Osburn filed the present action in late December 2015. In April 2017, the trial court granted Rideout’s motion for summary adjudication in part. It concluded that her dismissal was not based on her disability but on her inability to work in any capacity, and her request for another three months of open-ended leave was not a reasonable accommodation at that point. The trial court also did not find any evidence of retaliation for her leave request. It consequently dismissed those three counts (as well as the derivative count for dismissal in violation of public policy) and a prayer for punitive damages. It allowed the count asserting a failure to engage in the interactive process to go to trial on the question of whether Rideout had given Osburn adequate time in which to meet with her doctor to fashion appropriate restrictions for a return to work by the end of October 2015. In its special verdicts, the jury subsequently determined that Osburn was disabled, had made a request for reasonable accommodation of her disability, and was willing to engage in the interactive process, but that Rideout nevertheless had not failed to participate in good faith in the interactive process, and her dismissal was not a consequence of any failure to participate. The trial court accordingly entered judgment for Rideout. Briefing on appeal was completed in December 2018.

DISCUSSION

The appeal is haunted by this question: if Osburn, a skilled employee, in fact became capable of working again, why did she not request reinstatement as Rideout had offered (or seek employment elsewhere) rather than incur legal costs for her and her former employer over the failure to afford her three more months of unpaid leave? As a result, the trial court, the jury, and this court are confronted with resolving “what ifs”: second-guessing the consequences of the failure to grant outright the request for three more months of unpaid leave, or the request for a brief period in which finally to show that an ability to return to work was in fact based on something more than a wing and a prayer. However, regardless of whatever lurks below the surface of this litigation, we find that the trial court did not err in its resolution of the legal issues raised in this appeal.

1.0 Handicap Discrimination is Not Present on These Facts

“[I]n disability discrimination actions, the plaintiff has not shown the defendant has done anything wrong until the plaintiff can show he or she was able to do the job with or without reasonable accommodation.” (Green v. State of California (2007) 42 Cal.4th 254, 265, italics added; accord, Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 978 [plaintiff has burden of establishing ability to perform job with accommodation] (Nadaf-Rahrov).) “Holding 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, italics added; accord, Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) However, as Osburn conceded below, under state regulations for reasonable accommodations, an employer “is not required to provide an indefinite leave of absence as a reasonable accommodation.” (Cal. Code Regs., tit. 2, § 11068, subd. (c), italics added.)

With respect to her discrimination claim, Osburn insists that she was capable of performing the essential functions of her job with the reasonable accommodation of additional leave (never contending that she was able to perform her job without any accommodation). However, the October 2015 request to which she ties this count was not her first. She had already been on leave since April 2015, with her physician incorrectly certifying three earlier return dates. Nothing in this fourth request would indicate to Rideout that it was likely Osburn would in fact be able to return to work in January 2016 with any limitations that would allow her to work, in contrast with the previous three requests. Indeed, as Osburn admitted in a deposition, neither she nor her doctor foresaw any circumstances under which she might be able to return to work, even with limitations, before that date, and she did not feel well enough to return to work in October. Osburn did not demonstrate any evidence that Rideout discriminated against her on the basis of her disability itself, which had begun to manifest itself over a year earlier without any adverse actions on Rideout’s part.

Osburn attempts to admix her challenge to the failure of Rideout to give her sufficient time to provide an amended request for accommodations with her discrimination claim. This is not evidence of discrimination, however. It instead relates to her theory of a failure to engage in the interactive-accommodation process and not on her status as disabled. The trial court therefore properly granted summary adjudication on this count for failure of proof that she was otherwise qualified to perform her duties.

2.0 Rideout Was Not Required to Show That the Requested Accommodation Presented an Undue Hardship, or Substantiate Its Belief That the Request Was Open-ended

Osburn challenges the summary adjudication of her claim for failure to provide a reasonable accommodation of her handicap on two bases. She contends Rideout did not present any evidence that a further extension of her six-month leave for a “mere” three additional months constituted an undue hardship, or any evidence that this request amounted to seeking indefinite leave. (See, e.g., Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 988.)

The regulations regarding a reasonable accommodation in the interactive process provide that an employee is obligated to provide reasonable medical documentation to support a request for further accommodation. (Cal. Code Regs., tit. 2, § 11069, subd. (d)(6).) It is also Osburn’s burden as a litigant to show that the requested accommodation was reasonable. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1019.) Therefore, it was Osburn’s burden to show that a request for a three-month leave lacking any medical indicia that her condition would then allow a return to work under any circumstances was reasonable, before Rideout incurred the burden of showing undue hardship. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1227 [issue is not whether converting job assignment from temporary to permanent imposed hardship on employer but rather whether such accommodation was reasonable in first instance]; see Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 648-649 [where the defendant employer does not contest that accommodation is reasonable, it must present evidence of undue hardship in granting request], id. at p. 650 [noting, however, that a request for leave without any indication of possible return date is not reasonable].)

As for her argument that Rideout failed to establish the indefinite nature of her request for further accommodation, this stands the burden on its head. It is Osburn who failed to produce any evidence that a return to work under any circumstances was likely at the end of the requested accommodation. Absent such a showing, the accommodation request was not reasonable under the authorities cited above. (See also Duckett v. Dunlop Tire Corp. (11th Cir. 1997) 120 F.3d 1222, 1226 & fn. 2 [request for two months more after 10 months on leave unreasonable absent showing that employee “likely” able then to return to work].) Consequently, the trial court properly granted summary adjudication on this count.

3.0 The Retaliation Claim Does Not Fare Any Better Than the Discrimination Claim

Asserting that her fourth request for leave was a protected activity, Osburn asserts the temporal connection between the request and her dismissal gave rise to an inference of retaliatory intent that a jury was required to resolve. Osburn’s factual focus is too narrow.

As with her discrimination claim, Osburn began seeking accommodation for her condition in the fall of 2014. She had been granted three requests for leave without incident. This eviscerates any rational inference that her dismissal was premised on retaliatory intent for her fourth request.

Even if a whiff of retaliation remained, Rideout asserted its belief that in reality Osburn’s leave would simply be ongoing. Osburn failed to produce any evidence that this belief was not held in good faith; indeed, the evidence showed that Rideout had encouraged her to reapply for employment as soon as she was capable of returning to work. As a result, she was required to produce evidence other than the mere temporal proximity from which unlawful retaliatory intent could be inferred. (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 806-807.) This she failed to do. The trial court thus properly granted summary adjudication on this count.

4.0 No Error in Refusing Special Instruction No. 5

Osburn proposed special instruction No. 5, which asserted the principle that an employer must make reasonable accommodations for a handicap unless it would constitute an undue hardship. The special instruction noted that Rideout bore the burden of proving undue hardship, and set forth a number of factors to consider on that question.

At trial, the court asked counsel if this instruction related to “the failure to accommodate claim[,] which is out?” Osburn’s counsel noted undue hardship had relevance to the interactive process claim at trial because the employer was required to offer reasonable accommodations as part of the process. The trial court suggested that it would make more sense to fold the special instruction into the instruction on the interactive process. Counsel acceded to this suggestion. The court accordingly instructed the jury on the elements of a claim of failure to engage in good faith in the interactive process of identifying a reasonable accommodation of Osburn’s condition, including the nature of what constitutes a reasonable accommodation and a definition of undue hardship that would render an accommodation unreasonable. This definition incorporated the substance of the proposed special instruction, including the prerequisite that it is the employer which must demonstrate that a requested accommodation would produce undue hardship.

Counsel’s acquiescence in the court’s instruction forfeits the issue on appeal. In any event, Osburn fails to establish how the refused special instruction deviated in any significant way from the instruction given on undue hardship. Osburn accordingly cannot premise a claim of error on the failure to give the special instruction. (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.)

5.0 The Instruction on the Unreasonable Nature of the October Leave Request Was Not Prejudicial

In accordance with its pretrial ruling, the trial court instructed the jury that as a matter of law, the October 2015 request for further leave through January 2016 was not a request for a reasonable accommodation. (In its ruling, the court emphasized that the trial issue of whether some other accommodation short of the initial request was reasonable was a distinct question.)

Once again, Osburn raises the concept of failing to instruct that Rideout must establish this request incurred an unreasonable burden. She also contends that evidence did not support this instruction because nothing established that this was in fact a request for an indefinite leave. “Therefore, Rideout never demonstrated that . . . Osburn’s request for further leave was not reasonable.” Osburn posits the speculation that this instruction somehow confused the jury about Rideout’s obligations otherwise past October 15, 2015, to engage in the interactive process.

Osburn utterly fails to explain why she would be entitled to relitigate at trial the issue of summary adjudication that her October request was not reasonable. She also utterly fails to explain why the instruction on undue hardship in connection with her trial theory of failure to engage in the interactive process did not adequately convey the role of this principle in the jury’s determination. Finally, she utterly fails to explain why taking a request for leave through January 2016 off the table somehow “confused” the jury in evaluating whether Rideout’s actions in October 2015 represented good faith in finding some reasonable accommodation for her handicap. We therefore reject this argument.

6.0 The Claim Regarding Punitive Damages is Moot

Osburn contends the trial court erred in granting summary adjudication and dismissing her prayer for punitive damages. However, as we have found that Rideout was entitled to judgment on all substantive counts in her complaint, this claim is now moot.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Rideout. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

Butz, J.

We concur:

/s/

Raye, P.J.

/s/

Blease, J.