Opinion
H049585
12-28-2023
MERLINDA KALALANG, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS, et al., Defendant and Respondent.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19CV344637
ADAMS, J. [*]
Appellant Merlinda Kalalang resigned from her nursing position at Kaiser Foundation Hospitals dba Kaiser Permanente Medical Center Santa Clara (Kaiser) after Kaiser determined it could not accommodate Kalalang's restriction precluding her from working 40 hours per week. Kalalang sued Kaiser under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and for wrongful constructive termination in violation of public policy. The case went to trial, and the jury returned a special verdict in favor of Kaiser on all claims.
Further undesignated statutory references are to the Government Code.
On appeal from the judgment, Kalalang challenges the jury's finding that she could not perform the essential functions of her position with or without a reasonable accommodation. Because substantial evidence supports the verdict, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In summarizing the factual record, we recount the facts in the light most favorable to the judgment. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 739.)
A. Kaiser Hires Kalalang as a Managing Nurse
Kaiser employs in its hospitals assistant nurse managers (ANMs), who essentially act as charge nurses by managing the health care and administrative activities of a unit. ANM's are responsible for "day to day clinical operations including practice standards, staffing, payroll, budgets, fiscal management, and quality improvement." ANMs also "[s]upervise[] a single unit (8 to 24 hours) of approximately 20-60+ employees."
Kaiser hired Kalalang in May 2008 as an ANM in the maternal child department at its hospital in Santa Clara. The maternal child department and its several units were managed by Mitchell Sprugasci. Two of the units, the pediatric unit and the pediatric intensive care unit (PICU), had a combined capacity of 34 patients, some of whom were severely ill and required simultaneous care from two or three nurses.
Under Kaiser's regional staffing model, ANM shifts for the pediatric unit and the PICU were segregated between three, eight-hour shifts on weekdays and two, 12-hour shifts on Saturdays and Sundays in order to ensure an ANM was always on-site. Kalalang was the only ANM for the pediatric unit and the PICU on weekdays from 11:00 p.m. to 7:30 a.m.
Kalalang was expected to be "on the floor" 75 percent of the time during her shift. Aside from the basic duties of an ANM, Kalalang was responsible for teaching new nurses, assisting with medical procedures, filling in when other nurses were on break or occupied, helping with patient admissions, addressing the concerns of family members, and attending staff meetings. She was also required to cover different units when another ANM was absent.
B. Kalalang Requests a Reduced Work Schedule
On June 6, 2017, Kalalang sent an e-mail notifying the disability compliance manager, Ruby Bustamante, that she had calcification of the thyroid, which was likely cancerous. Kalalang requested a modification to her work schedule from five shifts per week to four.
Kalalang was then on leave for a cancer-related surgery from July 25, 2017, to August 13, 2017. On August 16, 2017, Kalalang sent another e-mail about her work schedule, this time to the disability case manager, Estelita Heisch. As before, Kalalang requested a reduced schedule of 32 hours per week because 40 hours was "too much." Heisch responded by asking Kalalang to provide a report from her doctor describing her work restrictions.
On September 28, 2017, Kalalang e-mailed her doctor that she needed to reduce her work hours because she was "getting weaker and in so much pain on the fifth night of work." Kalalang wrote that she was "too exhausted to work 40 hours" and wanted "time to rest more, exercise and do [her] groceries."
Before her cancer diagnosis, Kalalang injured her right shoulder while working as a nurse at a different hospital and developed fibromyalgia, for which she was taking pain medication.
In October 2017, Kalalang provided Kaiser with a report from her doctor detailing several work restrictions, including a restriction that she work only four shifts per week. In response, Kaiser temporarily accommodated Kalalang by placing her into a program permitting her to work 32 hours per week for 90 days.
On December 5, 2017, Kalalang's doctor extended the work restriction limiting her to four shifts per week through March 4, 2018. Kalalang provided this information to Kaiser and spoke with Heisch on December 19, 2017. After their discussion, Heisch sent Kalalang a letter on December 29, 2017, stating that Kalalang's temporary work program would end on January 1, 2018, and that she would be placed on a medical leave of absence if her doctor did not clear her to return to full-time work.
C. Kaiser Places Kalalang on a Leave of Absence
On January 3, 2018, Kalalang met with Bustamante and Sprugasci. According to Bustamante, the "main discussion" during the meeting concerned Kalalang's request to work 32 hours per week. Bustamante and Sprugasci notified Kalalang that working 40 hours per week was an essential function of her job, although Kalalang disagreed.
Kalalang was placed on a medical leave of absence on January 8, 2018, because she was still under a work restriction limiting her to 32 hours per week. On January 12, 2018, Kalalang sent a partially completed medical certification form from her doctor to Bustamante, Heisch, and Sprugasci, which included the restriction that Kalalang could only work 32 hours per week. Kalalang requested that Heisch complete the section of the form describing the essential functions of the ANM position and the scheduled work hours. Heisch followed up with Sprugasci to confirm the essential functions of Kalalang's position. On January 18, 2018, Bustamante e-mailed the list of essential functions to Kalalang. The list did not include a 40-hour workweek.
On or about May 31, 2018, Kalalang provided Kaiser with another doctor's certification extending her work restriction through July 14, 2018. In response, Heisch and Sprugasci notified Kalalang on June 8, 2018, that her leave of absence would be extended through July 14, 2018, but that Kaiser would begin the separation process if she could not return to full-time work by July 15, 2018. On July 10, 2018, Kalalang requested additional time off for an eye surgery, but Sprugasci denied the request. Kaiser stopped paying Kalalang after July 18, 2018.
D. Kalalang's Work Restrictions Become Permanent
On September 18, 2018, Kalalang's doctor extended her work restriction to October 22, 2018. On October 23, 2018, Heisch sent a letter to Kalalang "[i]n order to explore whether there [were] any reasonable accommodations" that would allow Kalalang to return to work. Heisch provided a medical certification form along with the letter, which Kalalang's doctor completed on November 12, 2018. The doctor noted on the certification form that the restriction limiting Kalalang to working four, eight hour shifts per week had become permanent.
On January 14, 2019, Mark Cursi, the disability manager who succeeded Bustamante, sent a letter to Kalalang informing her that Kaiser could not accommodate her in the ANM position and she was being placed into a job search process to identify another position within Kaiser for which she was qualified and could be accommodated. Cursi also notified Kalalang that if a suitable position could not be identified after 90 days, her employment at Kaiser would be terminated.
E. Kalalang Resigns from her Position at Kaiser
Between January and March 2019, Kalalang met several times with Antoinette Carter, a job search consultant, but was unable to identify a suitable position. Kalalang eventually decided not to complete the job search process and sent a resignation letter to Cursi on March 14, 2019.
F. Kasier's Efforts to Cover and Replace Kalalang
Throughout the time Kalalang was working 32 hours per week and then on a leave of absence, Sprugasci was scheduling other ANMs to cover extra shifts. These ANMs did not have the same specialized clinical knowledge and training as the ANMs for the pediatric unit and PIC U.Sprugasci did not ask the weekend ANMs to cover because he knew they would not want to work on weekdays. Although the unit kept functioning without Kalalang working full time, it faced constant staffing issues and was "a bit stretched."
Kaiser searched for a temporary replacement to fill Kalalang's position starting in January 2018, but did not receive any applications. The position remained vacant until late November 2018, when Kaiser secured a "traveling" nurse to cover for 26 weeks. After Kalalang resigned, Kaiser hired one of the weekend ANMs to fill the position.
G. Procedural Background
On the same date as she submitted her resignation letter, Kalalang filed a complaint against Kaiser asserting five claims under FEHA: disability discrimination, failure to accommodate, failure to engage in a good faith interactive process, age discrimination and retaliation. Kalalang also asserted a claim for wrongful constructive termination in violation of public policy and requested punitive damages.
Kaiser filed an answer and moved for summary judgment or, in the alternative, summary adjudication, which Kalalang opposed. The court granted summary adjudication on Kalalang's request for punitive damages, but denied the remainder of the motion.
Kalalang also filed a motion for summary adjudication, which Kaiser opposed. The court denied the motion in its entirety.
The case proceeded to trial. Several witnesses testified, including Kalalang, Sprugasci, Heisch, Bustamante and Cursi. Kalalang also presented the testimony of an expert in hospital operations and management, Dennis Coleman.
The jury returned a special verdict in Kaiser's favor on all claims. Judgment was entered on September 21, 2021, and Kalalang filed a timely notice of appeal.
II. DISCUSSION
Kalalang's challenge to the special verdict is limited to the jury's finding, made in connection with the disability discrimination and failure to accommodate claims, that she could not perform the essential functions of her ANM position with or without a reasonable accommodation. Since the evidence at trial showed that working 40 hours per week was the only job duty Kalalang could not perform, the parties agree the jury must have found that a 40-hour workweek was an essential function of the position. This case, therefore, turns on whether that finding is supported by substantial evidence.
When reviewing a special verdict, we may not infer findings on ultimate facts in favor of the prevailing party and are not doing so in this case. (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 124; Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1047.) Rather than a question of ultimate fact, whether a 40-hour workweek was an essential job function was a preliminary fact necessary to the jury's finding that Kalalang could not perform the essential functions of her ANM position. (See Stoner v. Williams (1996) 46 Cal.App.4th 986, 1002, fn. omitted ["The elements of a cause of action constitute the essential or ultimate facts in a civil case."]; Rhode v. Bartholomew (1949) 94 Cal.App.2d 272, 279 ["Ultimate facts are the logical conclusions deduced from certain primary facts evidentiary in character."].)
A. Standard of Review
We begin by clarifying the standard of review. When" 'findings of fact are challenged in a civil appeal, we are bound by the familiar principle that "the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.]'" (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245.)" '[W]e resolve "all conflicts in the evidence and all legitimate and reasonable inferences that may arise therefrom in favor of the jury's findings and the verdict."' [Citation.] We do not reweigh the evidence or judge the credibility of witnesses." (Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 251 (Mathews).) Needless to say, a party "raising a claim of insufficiency of the evidence assumes a 'daunting burden.' [Citation.]" (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 678.)
Kalalang recognizes the substantial evidence standard in her appellate briefing but nonetheless contends that our review is de novo because" '[q]uestions of statutory interpretation, and the applicability of a statutory standard to undisputed facts, present questions of law ....'" (Lui v. City &County of San Francisco (2012) 211 Cal.App.4th 962, 969 (Lui)). In Kalalang's view, because certain items of evidence were undisputed-such as the "nature of [Kalalang's] position," "the schedules required of [Kalalang] and of other individuals in her position," and "the description provided by [Kaiser's] employees"-determining whether a 40-hour workweek was an essential job function is a legal question rather than a factual one.
We disagree that a de novo standard of review applies here. Contrary to Kalalang's selective recitation of the evidence presented at trial, the record shows that whether a 40-hour workweek was an essential function was a vigorously contested issue for which both sides presented extensive, conflicting testimony and other evidence supporting their respective positions. Thus, as opposed to a legal question, this divergence raised a"' "highly fact-specific inquiry,'" [that] is usually an issue of fact for the jury to decide. [Citations.]" (Price v. Victor Valley Union High School Dist. (2002) 85 Cal.App.5th 231, 242; Hastings v. Dept. of Corrections (2003) 110 Cal.App.4th 963, 967, fn.6.)
Simply stated, the issue on appeal is not one that can be resolved by applying a statutory standard to undisputed facts. Instead, we review the record to determine whether it contains substantial evidence to support the jury's finding.
B. Legal Principles
FEHA "establishes separate causes of action for a range of 'unlawful employment practices,'" including the two at issue in this appeal: disability discrimination and failure to provide a reasonable accommodation. (Lui, supra, 211 Cal.App.4th at p. 970.)
Concerning a claim for disability discrimination, FEHA makes it an unlawful employment practice "[f]or an employer, because of the . . . physical disability, mental disability, . . . [or] medical condition . . . of any person, to refuse to hire or employ the person . . . or 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).)" 'Although section 12940 proscribes discrimination on the basis of an employee's disability, it specifically limits the reach of that proscription, excluding from coverage those persons who are not qualified, even with reasonable accommodation, to perform essential job duties: "This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability . . . where the employee, because of his or her physical or mental disability, is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations."' [Citation.] Thus, '[i]n order to prevail on a discriminatory discharge claim under section 12940(a), an employee bears the burden of showing (1) that he or she was discharged because of a disability, and (2) that he or she could perform the essential functions of the job with or without accommodation .... [Citation.]' [Citations.]" (Lui, supra, 211 Cal.App.4th at pp. 970-971.)
Concerning a claim for failure to provide a reasonable accommodation, FEHA makes it an unlawful employment practice "[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an . . . employee." (§ 12940, subd. (m)(1).)" 'The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation.]' [Citation.] 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.' [Citation.] As with a FEHA discrimination claim, the plaintiff bears the burden of proving that he or she had the 'ability to perform the essential functions of a job with accommodation.' [Citation.]" (Lui, supra, 211 Cal.App.4th at p. 971.)
Accordingly, in order to prevail on either her claim for disability discrimination claim or for failure to provide a reasonable accommodation, Kalalang was required to prove that "she is a qualified individual under . . . FEHA (i.e., that . . . she can perform the essential functions of the job with or without reasonable accommodation)." (Green v. State of California (2007) 42 Cal.4th 254, 260 (Green).)" 'Essential functions'" are the "fundamental job duties of the employment position the individual with a disability holds or desires," but not "marginal functions of the position." (§ 12926, subd. (f).) "Section 12926(f)(1) further provides that 'A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following: [¶] (A) The function may be essential because the reason the position exists is to perform that function. [¶] (B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed. [¶] (C) The function may be highly specialized, so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.' Moreover, section 12926(f)(2) states that 'Evidence of whether a particular function is essential includes, but is not limited to, the following: [¶] (A) The employer's judgment as to which functions are essential. [¶] (B) Written job descriptions prepared before advertising or interviewing applicants for the job. [¶] (C) The amount of time spent on the job performing the function. [¶] (D) The consequences of not requiring the incumbent to perform the function. [¶] (E) The terms of a collective bargaining agreement. [¶] (F) The work experiences of past incumbents in the job. [¶] (G) The current work experience of incumbents in similar jobs.' [Citation.]" (Lui, supra, 211 Cal.App.4th at p. 971-972.)" 'Usually no one listed factor will be dispositive ....'" (Id. at p. 977.)
While it is clear that Kalalang bore the burden of proving that she could perform the essential functions of the ANM position, it is less clear whether, under FEHA, she was also required to prove which of her job duties were essential. (Lui, supra, 211 Cal.App.4th at p. 972.) One Court of Appeal has observed that the employee's burden "[a]rguably . . . includes the burden of proving which duties are essential functions of the positions he [or she] seeks." (Ibid.) However, as Kalalang points out, federal cases decided under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.), have held that an employer must put forth evidence establishing the essential functions when disputing a plaintiff's claim that they can perform the essential functions of a job. (Ibid. [collecting cases].) We need not wade into this debate, however, because even assuming Kaiser was required to prove the essential functions of Kalalang's position, the jury's finding that a 40-hour workweek was an essential function is supported by substantial evidence.
"[T]he definition of 'essential functions' under the ADA . . . is nearly identical to the definition of that term under . . . FEHA ...." (Lui, supra, 211 Cal.App.4th at p. 971, fn. 9.) "[W]hen, as here, provisions of the two acts are similarly worded, federal decisions interpreting the ADA are instructive in applying FEHA. [Citations]." (Raine v. City of Burbank (2006) 135 Cal.App.4th 1222, 1226, fn. 7 (Raine).)
We also note that Kalalang did not address in the trial court the issue of which party bore the burden of proving essential functions and does not raise an issue of instructional error on appeal.
C. Analysis
The jury was instructed with CACI No. 2543, "Essential Job Duties" Explained, which reflects the same factors described in section 12926, subdivision (f), for determining whether a job function is essential. Kalalang argues the only conclusion that could be drawn from reviewing the factors in light of the evidence is that a 40-hour workweek was not an essential function of her ANM position. In support, she cites to evidence showing that Kaiser did not include working 40 hours per week as a requirement in either the position's job description or in the list of essential functions created in January 2018. Kalalang also relies on evidence showing that other ANMs at Kaiser worked less than 40 hours per week and contends that accommodating her work restriction was less burdensome than not accommodating her.
At the same time, other evidence in the record supports the finding that working 40 hours per week was an essential function of Kalalang's job. To that end, Bustamante stated that managers at Kaiser determine the essential functions of positions within their unit. The manager of Kalalang's unit was Sprugasci, who testified that working five, eight hour shifts per week was "absolutely" a requirement "[b]ecause it is essential that somebody is physically there." Sprugasci explained that the ANM for the pediatric unit and PICU must be "on the floor" addressing the needs of patients and other nurses. He said the ANM may need to assist with medical procedures, such as starting an IV or drawing blood, or may need to administer medication to a patient, help with patient admissions, address the concerns of family members, cover the absences of other nurses or attend staff meetings. Additionally, Sprugasci stated ANMs must ensure staffing levels are sufficient throughout the shift and must adjust assignments according to the "dynamic" environment in the unit. And Cursi agreed with Sprugasci's assessment. Cursi testified that while he "needed to be convinced," he ultimately concluded that working 40 hours per week was an essential function and that Kaiser could not accommodate Kalalang's request for reduced hours.
Although Sprugasci admitted that the list of essential functions he helped create in January 2018, did not include a 40-hour workweek, he explained why it was absent. Sprugasci testified that, in his experience, work hours are not usually included in the list of a position's essential functions because "when you list those types of things, you're just listing the duties of what they do on a daily basis, what you do every single day for the most part." Nevertheless, Sprugasci clarified he always considered working 40 hours per week as a requirement for Kalalang's ANM position, and he communicated this requirement to Kalalang along with Bustamante during their meeting on January 3, 2018.
Sprugasci also described why other ANMs had different working hours. He testified that Kaiser's model for the pediatric unit and PICU was to have weekday ANMs-who worked five, eight-hour shifts per week-and weekend ANMs-who worked two, 12-hour shifts per week. Although Sprugasci acknowledged the essential functions of the weekday and weekend ANM positions were the same except for the work schedule, he did not ask the weekend ANMs to take on a weekday shift in place of Kalalang because he knew they would not be interested. As Sprugasci put it, the weekend ANMs take those positions because of the specific schedule they offer.
Turning to the job description for Kalalang's ANM position, witnesses explained why it did not include a 40-hour workweek requirement. Cursi testified that Kaiser does not generally list the working hours for a position in a job description, and Bustamante stated she had never seen a job description with working hours included. Bustamante added that working hours are instead included in the requisition for a specific position, which Sprugasci confirmed.
Furthermore, Sprugasci testified that he and other ANMs had to work extra hours when Kalalang was working 32 hours per week. Although Sprugasci said the unit "managed" during that time, he opined it was not the best arrangement for patients, their families or staff. Similarly, Sprugasci told Cursi that he would come to work early and was pulling staff from other departments to make up for Kalalang's absence, something Cursi described as a "patchwork system of supervision."
When considered in conjunction with CACI No. 2543, the jury could reasonably conclude that a 40-hour workweek was essential to Kalalang's weekday ANM position, confirming Kasier's judgment on that issue. (§ 12926, subd. (f)(2)(A).) Indeed, the jury heard that the responsibilities of Kalalang's ANM position were varied, technical and had to be done on-site. The jury could also reasonably conclude that accommodating Kalalang on a long-term basis would result in unsustainable consequences to the pediatric unit and PICU, and could jeopardize the care of the at-risk patients served by the unit, some of whom were critically ill. (§ 12926, subd. (f)(2)(D).) Moreover, the jury could permissibly determine in light of the testimony from Kaiser's witnesses that neither the experience of other ANMs in comparable positions, such as the weekend ANMs, nor the absence of a work hours requirement in the job description, were compelling factors in deciding whether a 40-hour workweek was an essential function of Kalalang's position. (§ 12926, subds. (f)(2)(B), (f)(2)(G).)
Notably, the jury's conclusion finds support in cases addressing similar nursing positions. In Samper v. Providence St. Vincent Medical Center (9th Cir. 2012) 675 F.3d 1233 (Samper), the plaintiff was a neo-natal intensive care unit (NICU) nurse at the defendant's hospital, which had an attendance policy permitting up to five unplanned absences during a 12-month period. (Id. at p. 1235.) The plaintiff regularly exceeded the number of unplanned absences permitted under the policy and was terminated after counseling and accommodations were unsuccessful. (Id. at pp. 1235-1236.)
On the plaintiff's appeal from an order granting summary judgment, the Ninth Circuit Court of Appeals held consistent attendance was an essential function of the plaintiff's job, and that exempting the plaintiff from the attendance policy was not a reasonable accommodation. (Samper, supra, 675 F.3d at p. 1241.) The court explained that in the context of a NICU nurse, physical presence was required not only to provide critical care to vulnerable patients needing "constant vigilance," but also to meet the hospital's need "to populate this difficult-to-staff unit with nurses who can guarantee some regularity in their attendance." (Id. at pp. 1238-1239.) In those ways, the plaintiff's position was distinct from other jobs that either did not require on-site presence or could be done from home, such as a medical transcriptionist. (Id. at p. 1239 [distinguishing Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001) 239 F.3d 1128].)
In Laurin v. Providence Hospital (1st Cir. 1998) 150 F.3d 52 (Laurin), the plaintiff was a staff nurse in a 24-hour maternity unit but was terminated because she could not work evening and night shifts as required by the hospital's shift rotation schedule. (Id. at pp. 54-56.) The trial court granted summary judgment to the hospital. (Id. at p. 56.) The First Circuit Court of Appeals affirmed, holding that shift rotation was an essential function of the plaintiff's job because "a 24-hour hospital unit imposes exceptional nurse-scheduling demands upon the hospital-employer" and "normally it will not be possible for the hospital-employer to allow its maternity nurses to work only the more desirable or convenient shifts, where to do so would jeopardize its ability to staff its maternity unit during the less desirable evening and night shifts." (Id. at p. 59, fn. omitted.) The First Circuit added that "[t]he 24-hour hospital unit setting thus affords a particularly compelling context in which to defer to rational staffing judgments by hospital employers based on the genuine necessities of the hospital business." (Id. at p. 60.)
We find the reasoning of Samper and Laurin equally applicable here. As in Samper, the evidence presented at trial demonstrated that Kalalang's ANM position united "the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment." (Samper, supra, 675 F.3d at p. 1238.) Furthermore, Sprugasci testified that staffing decisions in the pediatric unit and the PICU are made hourly to ensure an appropriate nurse-to-patient ratio, and that ANMs must sometimes contact staff members to cover shifts if the staffing office is unsuccessful. This testimony shows that Kalalang's unit faced the same scheduling challenge highlighted in Laurin, stemming from Kaiser's need to provide around-the-clock care to severely ill children-some of whom required attention from several nurses at once- such that an extra eight-hour shift could not be absorbed on an ongoing basis without assigning work to ANMs from other departments or disrupting the expectations of ANMs specifically hired to work different schedules. Thus, the model designating some ANMs to work weekdays and others to work weekends in order to ensure sufficient coverage for all shifts can be fairly characterized as a "rational staffing judgment" entitled to considerable deference in the essential functions analysis, much like the shift rotation schedule at issue in Laurin. (Laurin, supra, 150 F.3d at p. 60.)
Kalalang attempts to distinguish this case from Samper and Laurin by calling attention to the fact she requested a fixed 32-hour schedule where she would be physically present as opposed to an exemption to an unplanned absence policy or a shift rotation requirement. But this argument is little more than an exercise in semantics. No matter the words used to describe it, Kalalang's request to work a reduced schedule- whether fixed or not-would have necessitated a modification to the way Kaiser structured ANM coverage in a manner the evidence showed made it consistently difficult to ensure a supervising nurse was present for all shifts. While Kalalang downplays this structure as a "regional staffing model" created for "operational convenience" rather than a "rational staffing judgment" implemented as an orderly division of responsibilities, she fails to account for the unique needs of a 24-hour critical care hospital unit recognized in Samper and Laurin. As the Laurin court put it, "[m]edical needs and emergencies- many potentially life-threatening-do not mind the clock, let alone staff-nurse convenience." (Laurin, supra,150 F.3d at p. 59.)
Kalalang contends another federal decision, Hostettler v. College of Wooster (6th Cir. 2018) 895 F.3d 844 (Hostettler), is more pertinent to this case. Hostettler involved a human resources generalist for a university who could not return to full-time work due to post-partum depression and separation anxiety. (Id. at p. 848.) Relying on several items of evidence-a job listing, the opinion of the plaintiff's supervisor, and the fact the plaintiff had previously worked 40 hours per week-the trial court determined that fulltime presence at work was an essential function of the plaintiff's position and granted summary judgment to the university. (Id. at p. 856.) The Sixth Circuit Court of Appeals reversed, explaining that "[o]n its own ... full-time presence at work is not an essential function," and the defendant's evidence did not "tie time-and-presence requirements to some other job requirement." (Ibid.) In essence, the Sixth Circuit declared that "fulltime presence at work is not an essential function of a job simply because an employer says that it is." (Id. at p. 857.)
We agree with the basic premise, recognized in cases decided under FEHA and the ADA, that an employer's judgment as to which functions of a job are essential "is a factor, and an important one, but it is not necessarily decisive." (Tate v. Dart (7th Cir. 2022) 51 F.4th 789, 794 (Tate); Stern v. St. Anthony's Health Center (7th Cir. 2015) 788 F.3d 276, 285 [employer's judgment regarding essential job functions is important but not controlling]; Davidson v. America Online, Inc. (10th Cir. 2003) 337 F.3d 1179, 1191 [employer cannot turn every condition of employment into an essential function by including it in a job description]; Lui, supra, 211 Cal.App.4th at p. 977.) But Kalalang would have us apply isolated comments from Hostettler and find that Kaiser merely averred that working 40 hours per week was essential without connecting the requirement to another job function. We are not so inclined because "context matters" when it comes to a job's essential functions. (Tate, supra, 51 F.4th at p. 797.) As illustrated by Samper and Laurin, when the position under examination is part of a hospital unit caring for critically ill patients 24 hours per day, essential functions must be viewed with that particular occupational context in mind. (See Samper, supra, 675 F.3d at pp. 1238-1239; Laurin, supra, 150 F.3d at p. 59.) In fact, Hostettler is in accord on that point; before addressing the essential functions of the human resources position in that case, the Sixth Circuit recognized that the analysis of a job's essential functions "does not lend itself to categorical rules" and is" 'highly fact specific.'" (Hostettler, supra, 895 F.3d at p. 854.) Therefore, we find the statements cited by Kalalang, when divorced from Hostettler's facts, have limited persuasive value here.
Kalalang's other arguments fare no better. She contends that the temporary accommodation allowing her to work 32 hours per week calls into question the legitimacy of Kaiser's claim that 40 hours was required. Notwithstanding Sprugacsi's testimony describing the repercussions that resulted even when Kalalang was partially absent, a similar argument was rejected in Laurin. There, as in this case, the hospital provided a temporary accommodation to the plaintiff by exempting her from the evening and night shift rotation. (Laurin, supra, 150 F.3d at p. 55.) The plaintiff cited this temporary accommodation as proof that all work could continue to be covered without requiring her to rotate shifts. (Id. at pp. 60-61.) The First Circuit disagreed, expressing that "[a]n employer does not concede that a job function is 'non-essential' simply by voluntarily assuming the limited burden associated with a temporary accommodation, nor thereby acknowledge that the burden associated with a permanent accommodation would not be unduly onerous. [Citation.]" (Ibid.) Applying the same reasoning here, we conclude on this record that Kaiser's provision of temporary accommodation was not a concession that Kalalang's position did not require a 40-hour workweek.
Kalalang also asserts that an employer's operational difficulties are not relevant to determining if a job duty is an essential function but are properly considered in conjunction with an employer's undue hardship . . . defense. (§ 12940, subd. (m) ["Nothing in this subdivision . . . shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship to its operation."]; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 978 [undue hardship an affirmative defense under FEHA].) A proposed accommodation constitutes an" '[u]ndue hardship'" pursuant to FEHA if it imposes" 'significant difficulty or expense' when considered in light of the nature and cost of the accommodation, the employer's size, budget, number of employees, overall financial resources and the structure and composition of the workforce. [Citations.]" (Raine, supra, 135 Cal.App.4th at p. 1227, fn. 9.) Given this definition, Kalalang believes we should disregard any evidence detailing administrative difficulties in accommodating her disability because Kaiser's undue burden defense is not an issue for this appeal. However, Kalalang does not cite legal authority supporting this theory of cabining evidence between an essential functions analysis and an undue burden defense, and we decline to consider it. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 ["[W]e may disregard conclusory arguments that are not supported by pertinent legal authority...."]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them."].) Even if we did, we would reject it because other courts have cited comparable consequences as a relevant factor when examining essential functions under FEHA and the ADA. (See, e.g., Lui, supra, 211 Cal.App.4th 962, 978 ["significantly diminished pool of officers available for deployment" if officers in administrative positions not required to carry out physically demanding job duties]; Samper, supra, 675 F.3d at p. 1238 [unplanned absences affected teamwork and were a hardship for other employees who had to cover extra work]; Tate, supra, 52 F.4th at p. 798 [fewer corrections officers available to respond to violent emergencies if lieutenant is exempted from responding to disruptive inmate behavior]; Williams v. AT&T Mobility Services LLC (6th Cir. 2017) 847 F.3d 384, 388 ["increased workplace tensions and decreased morale" if call center employee permitted flexible schedule].)
Turning back to the record, Kalalang touches on the evidence supporting the jury's finding but emphasizes areas of inconsistency. Under section 12926, subdivisions (f)(2)(A) and (f)(2)(B), she surmises that Kasier's judgment concerning the necessity of a 40-hour workweek is not genuine but rather a "litigation position taken at trial" because none of the job descriptions mentioned a 40-hour workweek and Kaiser did not document a work hours requirement in relation to Kalalang's position until February 2019. To the same point, she also references Coleman's opinion that work hours are not typically considered part of a job's essential functions and that schedule modifications are ongoing considerations in hospital settings.
Under section 12926, subdivisions (f)(2)(D), Kalalang claims the consequences were "worse and more unstable" when she was not allowed to work at all because Kaiser was unable to find another nurse to cover her shifts until November 2018, when a traveling nurse was temporarily placed in the position. And under section 12926, subdivisions (f)(2)(F) and (f)(2)(G), Kalalang cites evidence showing that other ANMs worked less than 40 hours per week and that Kaiser never considered "splitting" her schedule with other employees.
Although we acknowledge the evidence weighing against the conclusion reached by the jury, we cannot second-guess its resolution of evidentiary conflicts and must decline the implicit invitation to reweigh the section 12926 factors to reach a different outcome. (Mathews, supra, 43 Cal.App.5th at p. 251; Do v. Regents of the University of California (2013) 216 Cal.App.4th 1474, 1492 (Do) ["On substantial evidence review, we do not 'weigh the evidence ... or resolve conflicts in the evidence or in the reasonable inferences that may be drawn from it.' "].) Nor can we revisit the jury's credibility determinations or opine on the genuineness of a witness's testimony. (Do, supra, 216 Cal.App.4th at p. 1492.) Instead, we must infer in support of the verdict that the jury resolved any discrepancies and credibility questions in Kaiser's favor and rejected Kalalang's interpretation of the evidence. (Murray's Iron Works, Inc. v. Boyce (2008) 158 Cal.App.4th 1279, 1285 [the appellate court "must accept as true the evidence supporting the verdict, disregard conflicting evidence, and indulge every legitimate inference to support the verdict"].)
In sum, we conclude that substantial evidence supports the jury's finding that Kalalang could not perform the essential functions of her ANM position with or without a reasonable acommodation. Kalalang, therefore, was not a "a qualified individual" for claims of disability discrimination and failure to provide a reasonable accommodation under FEHA. (Green, supra, 42 Cal.4th at p. 260.)
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: GREENWOOD, P.J., DANNER, J.
[*] Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.