Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Haley J. Fromholz, Judge, Ct. No. BC307873
Mathews & Rager, Charles T. Mathews and Jeffrey A. Rager; Law Offices of Roxanne Huddleston and Roxanne Huddleston for Plaintiff and Appellant.
Mitchell Silberberg & Knupp, Patricia H. Benson and Suzanne M. Steinke for Defendant and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Jennifer J. Rose appeals from a judgment in favor of defendant The J. Paul Getty Trust. She challenges a number of the trial court’s evidentiary rulings, its grant of a directed verdict on her cause of action for retaliation in violation of the California Family Rights Act (CFRA, Gov. Code, § 12945.2 et seq.), and its grant of summary adjudication on her cause of action for retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.). We affirm.
As does plaintiff, we first set forth the facts based on the evidence adduced at trial. We then set forth the facts that plaintiff claims she would have established had the trial court not erroneously excluded evidence. Inasmuch as plaintiff also challenges the summary adjudication of her retaliation claim under FEHA, we separately set forth the evidence presented on the summary adjudication motion.
A. Evidence Adduced at Trial
The Getty Research Institute (Institute), where plaintiff worked, is one of four programs operated by defendant. Its mission is educational and scholarly. It operates a research library containing eight departments: research services, special collections and visual resources, conservation, information systems, research database, institutional archive, collection development and technical services.
Sally Crosby (Crosby) is the head of the technical services department, which is responsible for acquiring and cataloging materials. The department is divided into three sections: acquisitions, monograph cataloging and serials. Acquisitions is responsible for acquiring and cataloging materials. Monograph cataloging is responsible for further cataloging certain materials. Serials is responsible for acquiring and cataloging periodicals. The work of the three sections is interrelated, and the section heads communicate with each other and the department head almost daily.
Plaintiff, who began working for defendant in 1979, became head of the acquisitions section in 1982 after obtaining her master’s degree in library and information science. She supervised a staff of six people. After Crosby, initially one of plaintiff’s peers, was promoted to head of technical services, plaintiff reported directly to Crosby.
On November 5, 2002, plaintiff asked Larry Hunt (Hunt), defendant’s human resources director, for medical leave. She was suffering from stress, anxiety, depression, pain, memory loss and other symptoms. She initially indicated that she expected to return to work by the end of the month. However, she extended her leave three times, exhausting the 12 weeks’ leave to which she was entitled under CFRA. She then filed seven additional requests to extend her leave, for a total of over seven months’ leave. During this time, the Institute kept her position open for her. While she was on leave, plaintiff spoke on occasion to Hunt or to Jonathan See (See), the administrative liaison to the human resources department.
Plaintiff began psychological counseling in December 2002. When her condition failed to improve, her psychiatrist, Dr. Wendy Rosenstein, referred her to a neurologist, who then referred her to a rheumatologist. In April 2003, plaintiff was diagnosed with Sjogren’s syndrome, a form of systemic lupus erythematosus (lupus). Lupus causes a variety of symptoms, both physiological and psychological, some of which can be life-threatening. While its causes are unknown, it is known that certain factors can exacerbate the disease, including stress.
Plaintiff notified defendant of her diagnosis, and Hunt called her, seeking further information. On April 14, 2003, plaintiff’s attorney wrote to Hunt that plaintiff was “currently on medical leave as a result of symptoms and medical conditions she developed at least in part in connection with abusive treatment she has received from” Crosby. The attorney asked Hunt not to communicate with plaintiff. Thereafter, plaintiff’s psychiatrist, Dr. Wendy Rosenstein, provided Hunt with updates on plaintiff’s condition.
Hunt checked with the Job Accommodation Network website and made a list of possible accommodations that would enable plaintiff to return to work. He also called the Americans with Disabilities Act hotline about possible accommodations. Crosby prepared a written Transition Plan to assist plaintiff in returning to her position.
On May 29, 2003, plaintiff sent Hunt a note from Dr. Rosenstein, approving plaintiff’s return to work on June 2 with two accommodations: she was to work half-days for two weeks, and she was to avoid working with Crosby. Dr. Rosenstein did not specify a time period for plaintiff’s need to avoid working with Crosby, in that she did not know how long it would be necessary. Hunt met with See and Crosby on June 2. He asked Crosby whether it would be workable for plaintiff to avoid working with Crosby. Ultimately, the three agreed that it was necessary for plaintiff to report to Crosby. Hunt wrote to plaintiff that she could return to work on June 4 and work half-days for two weeks, but she could not be assigned to another supervisor.
With plaintiff’s permission, Hunt called Dr. Rosenstein. On June 3, 2003, Dr. Rosenstein left a message for Hunt stating her understanding that Hunt was rejecting the requested accommodation that plaintiff not work with Crosby. She stated that it was “definitely medically contraindicated for [plaintiff] to come back to work with Sally Crosby” and offered to explain why.
The following day, Dr. Rosenstein spoke to Hunt. Dr. Rosenstein told Hunt that plaintiff felt that Crosby was abusive to her. According to Dr. Rosenstein, she asked that Crosby not supervise plaintiff on a short-term basis. Hunt recalled Dr. Rosenstein asking that Crosby have no contact with plaintiff. Hunt told the doctor that it was necessary for plaintiff to report to Crosby.
Dr. Rosenstein left two more messages for Hunt asking him to reconsider and advising him that she would not release plaintiff to return to work if she had to work with Crosby. On June 9, she wrote to Hunt stating that she had requested two short-term accommodations to allow plaintiff to return to work: “(1) that [plaintiff] initially be allowed to work part-time, and (2) that she initially not work directly under a supervisor whom she feels to be hostile toward her and retaliating against her. In light of your unwillingness to follow my requests for such accommodations, I am unable to release [plaintiff] to return to work. [¶] I again ask you to consider making those adjustments, at least on a short-term basis, in order to allow [plaintiff] to return to the Getty . . . .”
Hunt contacted Dr. Rosenstein to find out what she meant by “short-term.” Dr. Rosenstein suggested a four-week trial period, after which she would evaluate the situation. Since she could not give him a definite answer as to how long the accommodation would be necessary, Hunt understood it to be of indefinite duration. Hunt made an alternate proposal that an intermediary sit in on all meetings between plaintiff and Crosby. Dr. Rosenstein rejected this proposal.
Hunt met with Crosby again on June 10 “to make sure that I hadn’t missed something, [Dr. Rosenstein’s] letter referred to harassment or abuse, and it wasn’t consistent with any impressions I had . . . .” He also spoke to other people about Crosby, including Susan Allen (Allen), chief librarian and assistant director of the Institute.
The reason for requiring plaintiff to report to Crosby was that the acquisitions, monograph cataloging and serials sections were physically and organizationally related, and it would be awkward for plaintiff to report to someone else. Hunt and Allen discussed whether there were other jobs available for plaintiff within the Institute but concluded there were none.
When Crosby was on leave the previous year, however, Prima Casetta (Casetta), head of the serials section, had supervised plaintiff. Plaintiff believed that she could temporarily report to Casetta, Billie Hackney, head of the monograph cataloging section, or Marcia Reed, head of the collection development department. According to Allen, it did not make sense to have plaintiff report to a peer, particularly since Crosby would still be managing the entire department and thus interacting with plaintiff.
Allen decided that the Institute could not accommodate plaintiff by granting her request not to report to Crosby. On June 18, Hunt drafted a termination letter. He stated that it was “critical that your position report to Ms. Crosby.” He mentioned deficiencies in plaintiff’s performance. He added that plaintiff previously had raised concerns about Crosby, but “[w]hile you had indicated that you perceived aspects of her manner and style to be stressful, at no point did you raise concerns that lead us to believe she had engaged in retaliatory or hostile behavior toward you.” He stated that he had looked into plaintiff’s allegations of harassment, but “[t]here is nothing in anything you told us or we otherwise learned to suggest that Ms. Crosby has engaged in harassment, discrimination, or retaliation.” Hunt reiterated that plaintiff could not be assigned to a different supervisor and suggested that she look for another job with defendant if there was one for which she was qualified. He concluded, “[b]ecause you and your physician have concluded that you can no longer perform the functions of your post of Head of Acquisitions, we must reluctantly terminate your employment with the Getty . . . .”
B. Excluded Evidence
From the time she began working for the Institute until 2002, plaintiff received excellent performance evaluations. In the summer of 2002, plaintiff began having difficulties dealing with Crosby. Due to stress caused by the situation, she took sick days in June, July and August. Crosby began documenting what she perceived to be deficiencies in plaintiff’s performance.
Crosby had a history of difficulties dealing with employees she supervised. In 1999, defendant brought in outside counselors to mediate the “dysfunctional situation” between Crosby and the employees.
Between 2000 and 2002, employee Karen Aspinall (Aspinall) complained over 10 times to the human resources department about abuse by Crosby. Aspinall spoke to Inez Gonzalez (Gonzalez) in that department, and Gonzalez relayed Aspinall’s complaints to See. In October 2002, Aspinall complained to See about the stress Crosby was causing her; he dissuaded her from filing a formal complaint, however. Finally, in the summer of 2003, Aspinall went to a doctor who concluded that due to stress, she could not return to work.
Employee Mary Woodley (Woodley) complained to the human resources department about abuse by Crosby. Crosby confronted Woodley, accusing Woodley of trying to get her in trouble. After Woodley complained a second time, the human resources department held a meeting to discuss the matter but took no action. Eventually, Woodley’s doctor advised her to leave her job because of the stress Crosby was causing. When she explained why she was leaving, the response was that “abuse is hard to prove.”
When she reported to Crosby, employee Paula Nielson (Nielson) took one to two weeks of stress leave each year. In 1998, Nielson suffered from carpal tunnel syndrome. When Crosby discovered this, she assigned tasks to Nielson that Nielson was unable to perform and which ordinarily would be performed by lower-level staff persons. Nielson ultimately left the Institute and sought psychiatric help.
On July 31, 2002, Aspinall reported to Gonzalez that Crosby “regularly humiliate[d]” plaintiff and told plaintiff she was incompetent. Plaintiff met with Gonzalez a number of times in August 2002 regarding the way Crosby treated her. She complained that Crosby’s abuse was “bordering on harassment.” Plaintiff was suffering from anxiety and intimidated to the point of “system overload.” Plaintiff was concerned that Crosby was trying to get rid of her. Plaintiff could not take the treatment anymore and was seeking counseling for the stress.
Plaintiff related to Gonzalez that Crosby had told her that her own job was at risk due to plaintiff’s mistakes. Plaintiff found this comment threatening. Plaintiff also said that she knew former employees who were “made to crack up,” and she believed Crosby was trying to do the same to her. Plaintiff told Gonzalez she had talked to an attorney about a lawsuit that had been filed against Crosby and settled by defendant.
Gonzalez told Hunt that plaintiff was suffering stress from her work, and Gonzalez had given her worker’s compensation forms to fill out. She also said that plaintiff had wanted to file a harassment claim and transfer to a different position. Gonzalez said she had told plaintiff that she could not transfer due to performance problems, although no performance problems were reflected in plaintiff’s file.
Gonzalez wrote in her notes: “Getty action must not be perceived as retaliatory. How: Inform [plaintiff] that she can still file a claim and it would be in her best interest to let her superior know . . . .” She added that she would “let [plaintiff] know transfer process may take a while and in the meantime, she continues to be in present position.” She would ask plaintiff if she “want[ed] to stay in department if she files harassment claim against supervisor?”
Gonzalez met with Hunt to discuss the situation. Hunt suggested that Gonzalez ask plaintiff to reconsider filing a harassment claim and tell plaintiff that if she filed a claim, “outside resources will ask you if you used your internal resources.” In her notes following the meeting, Gonzalez wrote: “DON’T YET USE THE EE COMPLAINT FORM.”
Gonzalez met with plaintiff the following day. Plaintiff said she did not want to file a harassment claim, indicating that she wanted to continue working for defendant and she thought filing the claim might damage her career. Gonzalez told plaintiff she could still file a claim. On September 9, 2002, Gonzalez wrote a note that plaintiff had submitted a completed complaint form, although she denied ever receiving a written complaint from plaintiff.
Gonzalez and Hunt also met with Crosby to discuss the situation. They let Crosby know that plaintiff complained of work-related stress caused by Crosby and was considering filing a claim.
Gonzalez and Hunt met with Allen, letting her know that “two employees now have described [Crosby’s] way of communication is perceived as intimidating.” Gonzalez wrote in her notes of the meeting that human resources could work with Crosby, but if plaintiff “doesn’t get on board, it can cost her her job.” Allen then met with plaintiff to discuss plaintiff’s problems with Crosby.
Allen also discussed the matter with See. See told Gonzalez and Hunt that because “there is absolutely nothing in [plaintiff’s] personnel file that would indicate any lack of performance in the past, any documenting from here on must start from scratch.” Gonzalez prepared a list of points for Crosby to discuss with plaintiff regarding plaintiff’s performance and met with Crosby on September 12, 2002 to present the list to Crosby. Crosby was happy with the list and thereafter began documenting plaintiff’s perceived performance deficiencies.
Gonzalez left defendant’s employ later in September 2002. Hunt then met with plaintiff regarding her problems with Crosby. He suggested she find another job elsewhere.
C. Evidence Adduced on Motion for Summary Adjudication
In May 2002, the Institute began preparing for its first fiscal year closing using a complicated new database. The challenge of changing databases was very stressful for those working on the change, including plaintiff. On July 8, after plaintiff made a serious budget tracking error, Allen suggested that Crosby keep notes on plaintiff’s performance deficiencies. Crosby did so “[t]o monitor and log and strategize performance issues” and did not place any of her notes in plaintiff’s personnel file.
On July 29, 2002, plaintiff took a sick day due to a strange rash on her hands and feet. Her doctor told her it was stress related. Unknown at the time was that the rash actually was a symptom of lupus.
Crosby went to human resources on August 13, 2002 to express concern about plaintiff’s performance. Plaintiff went to human resources on August 19 to complain about Crosby. She told Gonzalez that Crosby was harassing her by questioning everything she did and by making derogatory and condescending gestures and comments, such as asking her, “Do you want me to write that down for you?” and telling her not to feel like a failure.
Plaintiff acknowledged that Crosby did the same things to other employees.
On August 26, 2002, See sent an e-mail to human resources stating that he had met with Allen, who agreed that plaintiff’s performance problems and improvements should be documented and who wanted to help plaintiff improve. The following day, plaintiff went to human resources and mentioned that she was thinking of seeking legal advice. She later told Gonzalez that she was not going to seek legal advice, in that she wanted to work things out with Crosby.
At Gonzalez’s suggestion, plaintiff met with Allen to discuss her problems with Crosby. Allen said she did not think Crosby intended her comments to make plaintiff feel bad. Plaintiff acknowledged that was possible.
About this same time, plaintiff told Gonzalez she was thinking about filing a complaint about Crosby’s harassment. Gonzalez told Hunt that the conduct plaintiff described as harassment was not unlawful but was a problem with Crosby’s management style and communication. Plaintiff herself acknowledged that Crosby did not treat her as disabled or treat her differently because she took sick days; she did not think that Crosby even knew that she had a disability at this time.
Gonzalez encouraged plaintiff to meet with Crosby to try to improve their working relationship. On September 12, 2002, they met, with Gonzalez as facilitator, and agreed on steps to take.
When Gonzalez left her employment with defendant later that month, she told plaintiff to talk to Hunt about any further problems with Crosby. Plaintiff subsequently told Hunt that her relationship with Crosby was not improving, and she did not think it would improve. Hunt told her he could try to get approval for a severance package if she wanted to take time off to look for another job.
On November 5, 2002, plaintiff had a severe anxiety attack and went out on medical leave. She believed that the attack was caused by an incident the previous day when Crosby asked whether certain problems had been solved. Plaintiff said that they were “workflow issues,” not problems, and Crosby responded in a condescending manner that plaintiff found humiliating.
PROCEDURAL BACKGROUND
Plaintiff filed this action alleging nine causes of action: breach of contract, breach of the implied covenant of good faith and fair dealing, disability discrimination, retaliation under FEHA, retaliation under CFRA, retaliation under the Labor Code, harassment, wrongful termination in violation of public policy, and intentional infliction of emotional distress. After answering plaintiff’s complaint, defendant moved for summary judgment or, in the alternative, summary adjudication.
The trial court granted summary adjudication of plaintiff’s causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing, based on the fact her employment was at will. It granted summary adjudication of her retaliation causes of action, finding plaintiff’s complaints about Crosby’s harassment were not a protected activity under FEHA, she failed to show defendant terminated her because she took a leave of absence under CFRA or denied her the leave to which she was entitled. It granted summary adjudication of plaintiff’s harassment cause of action, finding no evidence she was harassed due to her disability.
The trial court denied summary adjudication of plaintiff’s “disability discrimination” cause of action under FEHA, finding a triable issue of fact as to whether defendant could have provided the requested accommodation. It denied summary adjudication of her causes of action for wrongful termination in violation of public policy and intentional infliction of emotional distress based on the continued viability of her disability discrimination cause of action.
Defendant then filed a number of motions in limine. No. 1 sought an order prohibiting plaintiff from characterizing Crosby’s conduct as “harassment” or from offering evidence of complaints about harassment or threats of legal action. No. 2 sought to exclude evidence of plaintiff’s complaints or threats, or defendant’s allegedly retaliatory conduct, prior to plaintiff’s November 5, 2002 CFRA leave. No. 3 sought to exclude evidence of Crosby’s alleged unlawful, improper or unfair treatment of other employees. No. 4 sought to exclude evidence that workplace stress caused or exacerbated plaintiff’s lupus. No. 5 sought to exclude any reference to a request for a transfer plaintiff made in 2002 or any characterization of the denial of that request as a failure to accommodate. No. 6 sought to exclude evidence of allegedly improper or inadequate personnel management prior to November 5, 2002. Finally, No. 7 sought to exclude evidence of improper or unfounded criticisms of plaintiff’s job performance or write-ups in 2002.
The trial court denied No. 1, stating that it was “not willing to get into the quagmire of regulating the use of words.”
The trial court granted No. 2, explaining that “[t]he 4th cause of action for retaliation is out of the case, and I don’t see any relevance to the issues to be decided in this case of such preleave complaints or retaliation. The issues here deal with the leave that was taken for seven and a half months ending in June ’03 if I’m correct and then the termination which took place after that. And the question is, whether there was accommodation and whether there was a dismissal based on disability and whether there was retaliation for that leave.” The trial court similarly granted No. 3, No. 5, No. 6 and No. 7 on the ground of relevance.
The trial court granted No. 4, noting that plaintiff’s causes of action were “not for causing the disability.” Additionally, there was no support for a claim “that stress, as in this case, is itself a disability.”
The case thereafter was tried before a jury. During trial, plaintiff’s causes of action for wrongful termination in violation of public policy and intentional infliction of emotional distress were dismissed as duplicative and potentially confusing to the jury. The trial court granted a directed verdict as to plaintiff’s cause of action for termination under CFRA, finding no evidence that plaintiff was retaliated against or terminated for taking her CFRA leave. The jury found in favor of defendant on plaintiff’s causes of action for disability discrimination based on failure to accommodate and wrongful termination. The trial court entered judgment in favor of defendant.
DISCUSSION
A. Erroneous Exclusion of Evidence at Trial
1.Exclusion Based on Summary Adjudication
Plaintiff contends the trial court erroneously excluded evidence at trial based on its ruling on defendant’s summary adjudication motion, in violation of Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120. In Raghavan, the court observed that summary adjudication is available to adjudicate causes of action, not to resolve factual issues. (Id. at pp. 1134-1136.) Therefore, “the summary adjudication of a ‘cause of action’ removes from the case ‘a separate theory of liability’ . . . but has no bearing on how ‘the remaining causes of action’—the other theories of liability—are to be tried or proved.” (Id. at p. 1137.) In other words, the trial court cannot exclude evidence due to its summary adjudication of a cause of action based on that evidence.
Code of Civil Procedure section 437c, subdivision (n)(2), specifically provides that “[i]n the trial of an action, the fact that a motion for summary adjudication is granted as to one or more causes of action . . . shall not operate to bar any cause of action . . . as to which summary adjudication was either not sought or denied.”
Reviewing the trial court’s rulings on defendant’s motions in limine, it is clear that the trial court committed no Raghavan error. Its rulings were based on relevancy, not on its previous summary adjudication rulings.
2. Impeachment Evidence
Plaintiff further contends that, in any event, the trial court abused its discretion in excluding the evidence, in that it was relevant to her claim of disability discrimination.
Plaintiff first claims that the trial court abused its discretion, in that the evidence was relevant for impeachment purposes. The first question is whether plaintiff sought admission of the evidence for impeachment purposes and the trial court refused to admit the evidence for that purpose. (Evid. Code, § 354; People v. Fauber (1992) 2 Cal.4th 792, 854.) Plaintiff has the burden of showing that she sought to admit the evidence for impeachment purposes and the trial court excluded it. (See Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971; Mohn v. Kohlruss (1987) 196 Cal.App.3d 595, 598.)
Plaintiff includes a long list of citations to the record to demonstrate that the trial court “sustained every one of [defendant’s] objections [to impeachment] despite its acknowledgement that the evidence was admissible.” A review of these citations shows that defendant objected to certain evidence, primarily on the ground of relevance, and the trial court sustained the objections.
The question of the admissibility of the evidence for impeachment purposes was not raised in plaintiff’s opposition to defendant’s motions in limine.
During the course of the trial, plaintiff made a limited offer of proof as to complaints by herself and others about Crosby to prove the reasonableness of the requested accommodation, discriminatory intent and to impeach Hunt’s testimony “that he did not know [plaintiff] and other employees had complained about Sally Crosby prior to May 29, 2003.” The evidence offered was Gonzalez’s notes regarding complaints about Crosby by various employees, as well as other notes and complaints. Plaintiff claimed these notes would impeach Hunt’s testimony, in that he “had access to Ms. Crosby’s personnel file with all the complaints contained therein. He had access to [plaintiff’s] complaints and looked at them. His testimony changed when he learned that [plaintiff’s] complaints may not be introduced into evidence.” The trial court stated that to the extent the offer of proof was a request “to reconsider or to be allowed to introduce more evidence that what you specified before [it] is denied . . . under [Evidence Code section] 352.”
Plaintiff contends the evidence was admissible to impeach Hunt’s testimony that he first learned that plaintiff did not want to work with Crosby from Dr. Rosenstein’s May 29, 2003 letter. He also testified that at no time before May 29, 2003 did anyone tell him that plaintiff could not return to work with Crosby. It also would impeach his testimony: “We had received the communication from Dr. Rosenstein where she was saying that [plaintiff] had felt the relationship [with Crosby] was abusive and harassment. To my knowledge, I had never heard that [Crosby] had ever done anything that would [be] in keeping with that.”
Evidence that Hunt knew of plaintiff’s complaints about Crosby does not impeach his testimony that the first time he learned that plaintiff could no longer work with Crosby was on May 29, 2003. Neither does it impeach Hunt’s testimony that he had never heard that Crosby had done anything that would constitute “abuse” or “harassment.” Hunt could have been aware of complaints about Crosby’s behavior without believing that her behavior constituted abuse or harassment in the legal sense.
This conclusion is borne out by evidence adduced at trial. At the same hearing in which the trial court ruled on plaintiff’s offer of proof, defendant’s counsel complained about plaintiff’s counsel’s violations of the trial court’s rulings on the motions in limine. In response, plaintiff’s counsel noted “that the documents of the defendants themselves are replete with references to harassment, discrimination and retaliation. [¶] Exhibit 55, for example, the letter they sent in firing my client, in several places references it.” This letter recounts plaintiff’s complaints to Gonzalez about Crosby as early as June 2002. These complaints included the belief that Crosby criticized plaintiff more than other employees, humiliated her, made derogatory comments to her, and caused plaintiff stress. Plaintiff characterized Crosby’s behavior as “‘bordering on harassment.’” The letter also indicates that plaintiff stated in a memo that she was committed to working with Crosby. Hunt noted in the letter that he had investigated plaintiff’s allegations and “concluded that Ms. Crosby is a demanding but fair manager. There is nothing in anything [plaintiff] told us or we otherwise learned to suggest that Ms. Crosby has engaged in harassment, discrimination, or retaliation.”
In summary, we find no error in the trial court’s refusal to admit the proffered evidence for impeachment purposes.
3. Evidence as to Reasonableness of Requested Accomodation
Plaintiff also claims the evidence was relevant to establish the reasonableness of her requested accommodation, and the trial court therefore abused its discretion in excluding it. Again, plaintiff fails to demonstrate that she sought admission of the evidence on this ground and the trial court refused to allow its admission for this purpose. (Evid. Code, § 354; People v. Fauber, supra, 2 Cal.4th at p. 854.) She therefore has not met her burden of demonstrating error. (See Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Mohn v. Kohlruss, supra, 196 Cal.App.3d at p. 598.)
The record does show that plaintiff sought admission of the evidence for another purpose: “to show that the company was on notice that Ms. Crosby was generally abusive to many of her subordinates, including the plaintiff.” The trial court did allow the admission of a limited amount of evidence of Crosby’s abusive treatment of employees for this purpose. This included the termination letter, discussed above, which recounted plaintiff’s complaints about Crosby’s treatment of her.
During the trial, the court stated: “Let’s deal with this question of relevance of evidence that Crosby abused plaintiff or did not like her. [¶] It seems to me there may be some limited relevance to the state of mind of the people who were determining if the plaintiff could be accommodated. In other words, if they knew at the time they were determining whether to give her an accommodation, and if so, what is that—if one of them is Crosby and Crosby didn’t like her, and if others knew she had problems with Crosby, it might have some limited relevance, because it might indicate a motive not to accommodate her. But you still have to prove that there was a reasonable accommodation and they didn’t do it, and I say this is marginal relevance. [¶] So you can introduce some evidence of it, but I’m not going to let you pour in everything you got. Okay? So be selective. Some small amount of evidence to show that would be relevant.”
The trial court added that “at some point and pretty quickly after you present that evidence, it becomes [an Evidence Code section] 352 issue, because it’s not what the trial is about. And to overdo the amount of evidence that we devote to that is going to take an undue amount of time, throw the jury off and lead them to believe it is something that it’s not, and it’s liable to inflame the jury. [¶] So I ask plaintiff’s counsel to be selective and to be brief in the evidence that they present that shows what the state of mind of the people making the decision was—not the state of mind of those who were not involved in the decision, but the state of mind of those people involved.
“And then evidence of the cause of lupus. I gather there’s some belief on the part of the plaintiff that evidence should be introduced that stress can induce flare-ups in lupus, and maybe your thinking is that evidence about Ms. Crosby’s alleged conduct might be offered as a basis for believing that if she worked for Crosby, there would be a flare-up in her lupus. [¶] There may be some relevance, again, but only as to the state of mind in making the decision, that is, if they were told that she had lupus and lupus might be exacerbated by Crosby’s behavior. The only thing that matters is: Were they told that? And then the question is: What did they do?”
It thus is clear that, despite its rulings on the motions in limine, the trial court was willing to admit evidence of Crosby’s abusive treatment of employees to the extent it was relevant. It was plaintiff’s burden to seek admission of the evidence for the purposes she now claims the evidence was relevant. Having failed to do so, she has no claim of error. (Evid. Code, § 354; People v. Fauber, supra, 2 Cal.4th at p. 854.)
4. Evidence of Stress Disability in 2002
Plaintiff also asserts that the trial court erroneously excluded evidence relevant to her claim that she was wrongfully terminated based on her disability. She asserts that it did so by ruling that her only disability was lupus, by excluding evidence that defendant falsely criticized her performance, and by excluding evidence that Crosby discriminated against another disabled employee.
Plaintiff complains that the trial court ruled that her “only disability was lupus, not the stress and depression she suffered in 2002 which caused her to take medical leave.” It therefore “exclude[ed] all evidence pre-dating [her] departure on medical leave, reasoning that because no one knew [she] had lupus until April, 2003, nothing [defendant] did before then could have been motivated by disability discrimination.” This was error, plaintiff claims, in that it “allowed [defendant] to hide its actions during the fall of 2002 on the theory that they were irrelevant to any discrimination because it was ignorant of any disability at that time.” At the same time, it allowed defendant to present evidence that defendant granted plaintiff medical leave in November 2002. This “allowed [defendant] to present a front to the jury suggesting it knew of, and sympathized with and supported [plaintiff’s] right to take medical leave because of the disabling stress she was suffering in 2002.”
Plaintiff claims that defendant “had no right to take these inconsistent positions. Because it was undisputed at trial that [plaintiff] was suffering from a medical disability—stress and depression—in 2002, [plaintiff] should have been allowed to introduce evidence of [defendant’s] retaliation and failure to accommodate that disability—such as by allowing her to transfer—as well as the failure to accommodate when she tried to return to work after the diagnosis of lupus.”
Plaintiff’s case was tried on her causes of action for disability discrimination and wrongful termination. Her disability discrimination cause of action was based on defendant’s failure to accommodate her disability by allowing her to report to someone other than Crosby and defendant’s subsequent termination of her employment. These causes of action were not based on a claim of failure to accommodate a stress disability in 2002 or retaliation based on the stress disability. The trial court previously had summarily adjudicated plaintiff’s retaliation causes of action in defendant’s favor, in part because defendant granted plaintiff her requested medical leave in 2002.
Inasmuch as plaintiff’s alleged stress disability and defendant’s response thereto were not at issue at trial, evidence in that regard was not relevant and properly was excluded. It did not have “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
5. Evidence of False Criticism of Plaintiff’s Performance
Plaintiff further asserts the trial court erroneously excluded evidence that defendant falsely criticized her performance. This evidence, plaintiff asserts, would have established that her firing was pretextual.
The problem with plaintiff’s assertion, however, is that defendant never claimed to have terminated plaintiff’s employment based on her poor work performance. To the contrary, defendant acknowledged that plaintiff was being terminated due to her disability and defendant’s inability to accommodate that disability in the manner requested by plaintiff. Pretext was not an issue, and the excluded evidence thus was irrelevant. (Evid. Code, § 210.)
6. Evidence of Disability Discrimination Against Another Employee
Finally, plaintiff contends the trial court erroneously excluded evidence that defendant, through Crosby, discriminated against another disabled person: Nielson. This, plaintiff claims, would have shown defendant’s discriminatory motive.
As previously discussed, the trial court agreed to allow plaintiff to present a limited amount of evidence as to defendant’s actions prior to November 2002 to prove its intent. Plaintiff cites nothing in the record to show that she attempted to introduce evidence of defendant’s treatment of Nielson as proof of intent and the trial court at that time ruled that she could not do so. Accordingly, she has not established error. (Evid. Code, § 354; People v. Fauber, supra, 2 Cal.4th at p. 854.)
B. Directed Verdict on Retaliation in Violation of CFRA and Punitive Damages
1. CFRA
CFRA generally requires an employer to grant an employee’s request to take up to 12 weeks of medical leave in a year. (Gov. Code, § 12945.2, subd. (a).) A plaintiff has a cause of action for retaliation in violation of CFRA if she exercised her right to take medical leave under CFRA and as a result suffered an adverse employment action. (Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261.)
Plaintiff argues that she “was terminated only three weeks after she asked to return to work from disability leave and the jury could have inferred from this timing that [defendant] fired [her] because she took an extended medical leave.” Therefore, she concludes, the trial court erred in granting a directed verdict on her CFRA cause of action.
Plaintiff’s argument omits some pertinent facts. Plaintiff began her CFRA leave in November 2002, extending it three times until she had exhausted the entire 12 weeks to which she was entitled. Defendant then extended her leave seven additional times, for four more months, leaving her position open for her and taking no action against her. Only after defendant decided that it could not grant her the requested accommodation did it terminate her employment. There was no evidence suggesting that defendant terminated her because she took the initial 12 weeks of leave under CFRA. The trial court therefore did not err in granting a directed verdict on that cause of action. (Margolin v. Shemaria (2000) 85 Cal.App.4th 891, 895.)
Plaintiff argues that even if the timing of her termination did not establish retaliation in violation of CFRA, the excluded evidence would have provided a basis for finding retaliation. As discussed above, the trial court agreed to admit a certain amount of such evidence to prove defendant’s intent. Plaintiff points to no such evidence that she introduced that would prove that defendant fired her for taking her CFRA leave. Again, she has failed to show error in the directed verdict on her CFRA cause of action.
2. Punitive Damages
Plaintiff’s claim of error with respect to the directed verdict on her request for punitive damages is that the trial court erred in excluding evidence which would have entitled her to punitive damages. Again, plaintiff fails to show that she sought admission of the evidence for this purpose and the trial court refused to admit it. She therefore has failed to show error. (Evid. Code, § 354; People v. Fauber, supra, 2 Cal.4th at p. 854.)
C. Summary Adjudication of Retaliation in Violation of FEHA
In plaintiff’s fourth cause of action for retaliation in violation of FEHA, she alleged that defendant retaliated against her for complaining about harassment by Crosby and for threatening to take legal action against defendant. The retaliation consisted of her termination.
FEHA protects an employee from discrimination based on “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation.” (Gov. Code, § 12940, subd. (a).) To prove retaliation in violation of FEHA, plaintiff must show that she engaged in a protected activity, she suffered an adverse employment action, and the existence of a causal connection between the protected activity and the adverse employment action. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1453.)
The trial court granted summary adjudication of plaintiff’s cause of action for retaliation in violation of FEHA. It explained that plaintiff’s complaints about Crosby’s harassment were not a protected activity, in that the harassment was not based on one of the factors listed in FEHA. (Gov. Code, § 12940, subd. (j)(1).) Additionally, while plaintiff alleged she was harassed based on her physical disability, she was not diagnosed with lupus until April 2003, after she went out on medical leave, so the harassment could not have been based on her disability.
Plaintiff now contends that the trial court’s ruling “reflects a misunderstanding of [plaintiff’s] disability and her complaints and threats to take legal action because of it.” Plaintiff claims that “the stress and depression [she] was suffering in the summer and fall of 2002 was a disability for which she had the right to take medical leave.” Assuming arguendo plaintiff’s claim is correct, the evidence showed that defendant granted her the medical leave she sought, plus additional medical leave. Defendant held her job open for her during this time and did not terminate her until after she refused to return to work unless she could be supervised by someone other than Crosby.
More importantly, however, there is a question whether Crosby’s harassment was based on plaintiff’s alleged stress disability. Plaintiff’s complaints about the harassment were not protected under FEHA unless the harassment was based on her disability. (Gov. Code, § 12940, subd. (j)(1); Akers v. County of San Diego, supra, 95 Cal.App.4th at p. 1453.) Plaintiff points to no evidence that this was the basis for Crosby’s harassment. Rather, there was evidence that plaintiff herself acknowledged that Crosby did not treat her as disabled or treat her differently because she took sick days, and she did not think that Crosby even knew that she had a disability at the time the harassment took place.
It was plaintiff’s burden to point out in the record (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115) the existence of evidence sufficient to raise a triable issue of fact as to her cause of action for retaliation in violation of FEHA (Code Civ. Proc., § 437c, subds. (b), (c), (f)(1)). Since she failed to do so, the trial court’s summary adjudication of that cause of action must be upheld.
The judgment is affirmed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.