FACTS

A. Sgarlato’s Employment with the County

Camelia Sgarlato was first hired on January 3, 2008 as a per diem Registered

Nurse III for Riverside University Health Systems (RUHS). After moving around, she

worked in permanent Registered Nurse III positions in Riverside County facilities from

July 15, 2010 until March 2018, when she was released from employment.

On October 4, 2012, Sgarlato injured her left foot and ankle while pushing a

patient on a gurney. She didn’t initially report the injury because of a bad experience she

2 had reporting a prior work injury. Instead, she went back to work as usual and assumed

her ankle would improve. However, by December, she started feeling increased pain and

stiffness after standing and walking while at work. Eventually she sought medical

treatment and discovered she had suffered a severe tendon tear.

On January 22, 2013, and in subsequent follow-up reports, Sgarlato’s physician

reported the injury and recommended she be placed in a position that would allow her to

remain sedentary. On April 12, 2013, her health care provider filled out a form entitled

Documentation of Disability, in which he indicated Sgarlato could walk a maximum of 5

minutes per hour, stand a maximum of five minutes per hour, and lift a maximum of 10

pounds. He said the limitations would last more than six months. The form requested

Sgarlato have “sedentary duties only.” In weekly Work Status Reports over the next

couple months, her health care provider indicated she should be placed in a sit down job,

with no standing, walking, climbing, stooping, bending, kneeling, or squatting.

Sgarlato’s employer accommodated these work restrictions. First, they put her

temporarily in a position in a clinic where she could review medical charts while seated.

On June 27, 2013, they placed her in a sedentary case review position in their Case

Management unit. In September 2013, she was hired to a Registered Nurse III position in

the same unit, where she continued to work until July 2015.

In April 2015, Louise O’Rourke took over as director of Case Management, where

she was charged with improving operations. On July 23, Pasha Dourseau, an assistant

manager, saw Sgarlato filling out personal court documents at her desk. Dourseau

3 advised Sgarlato she couldn’t conduct personal affairs during her work time and asked if

she was on a break. Dourseau and Sgarlato have different versions of what happened

next. According to Dourseau, Sgarlato said she was leaving work early to file the

documents in court. She said she asked Sgarlato whether she had received permission to

do so, and Sgarlato erupted, got up from her desk and bumped her intentionally.

According to Sgarlato, she told Dourseau politely that she was on her lunch break and

then went to the restroom. When she returned, she said she unintentionally bumped into

Dourseau, who was coming out of her cubicle. She says she apologized, but Dourseau

accused her of bumping her on purpose.

Dourseau went to O’Rourke to report the incident, and Sgarlato interrupted.

According to O’Rourke, Sgarlato stepped into the doorway of her office, denied touching

Dourseau, and yelled, “You have it out for me! You keep harassing me! You are

prejudiced!” O’Rourke said she asked Sgarlato to sit down and discuss the situation, but

Sgarlato continued yelling. In the end, O’Rourke had to physically place herself between

Sgarlato and Dourseau. She yelled “Stop now!” to get Sgarlato’s attention and calm her

down. Sgarlato eventually sat down and the three discussed the matter. According to

O’Rourke, she gave Sgarlato permission to leave early.

Sgarlato’s version of these events is quite different. She says she apologized to

Dourseau for bumping into her, but says when they were in O’Rourke’s office, Dourseau

was the one yelling and accusing Sgarlato of harassment. When Dourseau remained

agitated, Sgarlato complained that the situation was escalating to the point she was

4 feeling harassed by Dourseau. She says O’Rourke responded by yelling, “You are

crippled! I am doing you a favor to [let you] work in this office. I feel sorry for you.” She

says she asked O’Rourke to stop screaming at her, and O’Rourke invited her into her

office. Sgarlato says she sat down without confronting Dourseau. When she tried to

explain what had happened, O’Rourke yelled at her to stop talking and threatened to send

her home. She agrees the three then discussed the matter. According to Sgarlato, she then

returned to her desk to finish her workday.

The following Monday, Sgarlato complained about the incident to human

resources. She met with human resources analyst Carly Obenberger and told her

O’Rourke and Dourseau had discriminated against her and harassed her and that

Dourseau falsely accused her of bumping her intentionally. She also accused O’Rourke

of screaming at her. Obenberger took notes during the meeting and gave Sgarlato the

form explaining county policy and the complaint process. Sgarlato filed a complaint the

same day, accusing O’Rourke and Dourseau of discriminating against her based on race,

color, national origin, and disability and of retaliating against her based on the July 23

incident.

Sgarlato was temporarily reassigned from Case Management to Patient Accounts

and then to Quality Management, which allowed her to report to a different supervisor

while human resources conducted an investigation. After the investigation, human

resources found the allegations to be unsubstantiated. Human resources contacted

Sgarlato around June 20, 2016 to tell her they had found no discrimination or harassment

5 had occurred, and they directed her to return to her position in Case Management on June

23, 2016, 11 months after the incident. The same day, Sgarlato filed a workers’

compensation claim for emotional distress based in part on her treatment by her managers

in Case Management.

Sgarlato returned to work in Case Management as directed. However, when

O’Rourke asked her to sign a form acknowledging she could work in the position she

previously had without needing accommodations, she refused, saying she disagreed with

how the form characterized her work restrictions. The acknowledgement form said

human resources had received a notification on September 22, 2015 from Dr. Watkin that

Sgarlato had a condition that required permanent work restrictions, specifically she

should be precluded from prolonged weight bearing, stay off her feet for 20 percent of

her work shift, and avoid repetitive climbing. The acknowledgment said leadership in

Case Management had determined those restrictions would not prevent her from

performing the essential functions of her position. According to Sgarlato, the medical

report that was the basis for these restrictions was written by a workers’ compensation

doctor who hadn’t seen her for more than a year. She complained the restrictions written

into the acknowledgement were outdated and inconsistent with her prior restrictions.

O’Rourke said she told Sgarlato if she wouldn’t sign the acknowledgment form,

she would have to go to human resources because she wasn’t sure she could allow her to

work. According to Sgarlato, O’Rourke was more definitive; she told her she would lose

her job if she refused to sign. She said O’Rourke raised her voice when she refused to

6 sign the form, and ordered her to leave the department immediately. Sgarlato went to

human resources and told Obenberger she refused to report back to her original

department since she was uncomfortable working with O’Rourke. Sgarlato reiterated she

didn’t agree with the contents of the form, and refused to sign it. Obenberger attempted to

clarify the meaning of the acknowledgement.

Sgarlato wasn’t convinced. She refused to leave Obenberger’s office and refused

to return to duty in Case Management. Instead, she asked for human resources to reassign

her to another department in the hospital so she wouldn’t have to work under O’Rourke’s

supervision. Obenberger told her a reassignment wasn’t justified since her prior

allegations were unsubstantiated and told her there were no open positions in Quality

Management, where she had worked temporarily as an accommodation. When Sgarlato

refused to report back to Case Management, Obenberger called a manager senior to

O’Rourke, who directed her to do so. She again refused and told Obenberger she was

going home.

On July 8, 2016, Sgarlato filed a second discrimination complaint against

O’Rourke, alleging harassment and discrimination based on disability and also that

O’Rourke had threatened she would lose her job. Obenberger conducted the investigation

for human resources and concluded her allegations were unsubstantiated.

Around the same time, Sgarlato submitted a doctor’s note taking her off all work

due to a psychological condition resulting in emotional distress. She was granted family

and medical leave which continued until her leave hours ran out on September 23, 2016.

7 In September, she submitted a certification from a psychologist recommending she be

relieved of all work duties until December 30, 2016. The County’s Disability Access

Office continued the interactive process with Sgarlato. They held several meetings and

granted Sgarlato medical leaves of absence while the process was ongoing.

In October 2016, Sgarlato submitted a request for accommodation seeking work in

a less stressful environment away from O’Rourke. The county denied this

accommodation request because it was not reasonable to remove an employee’s

supervisor. They also determined granting additional leave would not make it more likely

she would be able to return to work.

On January 4, 2017, the Disability Access Office and human resources issued a

denial of her request for additional leave as a reasonable accommodation. They described

as factors supporting their decision (1) her refusal to provide any details of her prognosis

to justify a medical leave of absence, (2) her refusal to work under O’Rourke’s

supervision even though she wasn’t limited in performing her essential job functions, and

(3) the fact that she had already been provided with substantial leave without showing

improvement. After serving the letter, the Disability Access Office attempted to contact

Sgarlato to determine if she had updated restrictions, but she didn’t respond.

On March 20, 2017, the county notified Sgarlato they would be filing an

application for disability retirement on her behalf if she didn’t direct them otherwise by

March 29, 2017. March 23, 2017, Sgarlato responded, explaining her situation, including

the ongoing physical problems caused by her injury and her problems with O’Rourke,

8 and saying she wasn’t interested in applying for disability retirement and wanted to return

to work. She also provided additional medical information.

On April 10, 2017, Marina Martinez from human resources, told Sgarlato they had

received her letter and requested certification of her medical condition. The next day,

Sgarlato provided a medical note from her psychologist releasing her to return to full duty

from the restrictions caused by her emotional distress. On April 14, 2017, she provided a

medical note from her physician releasing her to return to work in 10 days with the

restrictions that she perform sedentary work three days a week for eight to 12 hours a day

while wearing supportive shoes with insoles.

On April 20, Martinez informed Sgarlato the county would continue the

interactive process to determine if her department was able to accommodate her new

restrictions. On May 10, 2017, Sgarlato submitted revised restrictions allowing her to

work four days a week for eight to 12 hours a day while wearing supportive shoes with

insoles.

Martinez asked Sgarlato’s department to prepare a job analysis assessing the

essential functions of her position. On May 3, 2017, the department completed the job

analysis and provided it to Martinez. Martinez then consulted further with RUHS

management and they determined Sgarlato’s restrictions could not be accommodated

because they no longer had part-time sedentary nursing positions, and no other nursing

positions were available which could accommodate her restrictions. In conducting the

review, they determined the sedentary position Sgarlato had previously occupied no

9 longer existed due to a nursing shortage, the result of which was that all nurses were

expected to be able to work the floor of the hospital when needed.

On May 11, 2017, Martinez met with Sgarlato to discuss the job analysis. Sgarlato

said she had worked in two units before going out on leave. She said the job duties listed

in the job analysis were not the duties she was performing when she left those positions,

and said she was unable to perform floor work due to her restriction to sedentary work.

After the meeting Martinez contacted the new person supervising the Case Management

unit, Carlos Moreno, to confirm the job analysis correctly set out the job requirements,

and he confirmed its accuracy. He reported there were no part-time sedentary nursing

positions and also said there were no part-time nursing positions of any sort. He said

making any nursing position part-time or sedentary would have required changes to the

essential functions of the position and would have been a hardship on the department. On

June 1, Martinez contacted Sgarlato to report the job analysis they reviewed at their

meeting was accurate. After attempting to find part-time sedentary positions in another

department, Martinez called Sgarlato and explained they were unable to accommodate

her.

On July 13, 2017, Martinez sent Sgarlato a Denial of Work Accommodation

Request letter informing her she could not be effectively accommodated in her current

position and there were no current, appropriate vacancies within her department to which

she could be reassigned, but she could be considered for alternative vacant positions in

other county departments. Sgarlato returned a completed job search accommodation form

10 on July 18, 2017, indicating she was willing to work only in positions within her job

series (nursing), was not willing to take a lower level position within her job series, was

not willing to take a position at a lower salary level, and was interested only in day shift

positions.

Sgarlato was added to the accommodation referral list to search for possible

alternate positions. As part of that process, she was given preferential consideration for

an alternate nursing position in the RUHS clinics. She attended a skills verification

meeting with the hiring manager, who determined she was not qualified for the position

due to insufficient knowledge and the fact the position had mobile tasks not compatible

with her restrictions. No other positions meeting Sgarlato’s requirements were located.

While she was on the accommodation referral list, Sgarlato received unemployment

benefits and then found a nursing position with another employer in September 2017. She

reported she works full-time in her new position and could not find a part-time position.

On March 16, 2018, after she rejected disability retirement, Sgarlato was sent a

letter notifying her of her release from employment, effective March 6, 2018.

B. Employment Litigation and Summary Judgment

On May 21, 2018, Sgarlato filed an initial complaint against the county. On July

24, 2020, she filed a third amended complaint alleging disability discrimination in

violation of the Fair Employment and Housing Act (FEHA), failure to prevent

discrimination in violation of FEHA, failure to accommodate in violation of FEHA,

failure to engage in an interactive process in violation of FEHA, and retaliation in

11 violation of FEHA and Labor Code sections 98.6 and 1102.5. The third amended

complaint is the operative complaint.

On March 11, 2021, the county filed a motion for summary judgment seeking

dismissal of all Sgarlato’s causes of action. The county filed 39 exhibits in support of the

motion, including declarations from Obenberger, Martinez, O’Rourke and Moreno.

Sgarlato submitted only her own declaration, which didn’t set forth factual information,

but instead listed documentary evidence she was submitting. Most of those documents

were medical records and performance evaluations, and others were communications she

had with her employer, which the county also submitted.

On May 25, 2021, the trial judge, Riverside County Superior Court Judge Irma

Poole Asberry, heard argument on the summary judgment motion. On June 11, 2021, the

trial judge issued a ruling granting the motion on all Sgarlato’s claims.

The judge concluded Sgarlato’s claims for disability discrimination and failure to

prevent discrimination failed because she had presented no evidence of discrimination.

The judge pointed out Sgarlato herself had testified O’Rourke and Dourseau were the

people who discriminated against her, but the evidence established neither woman was

involved in the decision to terminate her. Even if Sgarlato had presented evidence of

discrimination, the judge concluded the county had presented evidence they had a

legitimate business reason for the decision—that Sgarlato was no longer qualified to do

her job, and they could not reasonably accommodate her as there were no available

positions. The judge pointed to the fact Sgarlato had provided no evidence the position

12 she sought was still available and that requirements of the job were described as light, not

sedentary, with standing and walking described as frequent.

Regarding the retaliation claim, the judge concluded the county met its initial

burden by demonstrating they had a legitimate business reason for terminating Sgarlato.

She also concluded the county had established there was no causal link because the

supervisors she had complained about weren’t involved in the decision to terminate her.

The judge held the same analysis applied to her claim under Labor Code sections 1102.5

and 98.6.

Regarding her claim for failure to accommodate, the judge noted Sgarlato

admitted she was given the leave time she requested and was released from her emotional

distress restrictions by April 2017, leaving only her physical restrictions. The judge

concluded the evidence showed the county tried to accommodate Sgarlato by finding

sedentary positions, but none of them met her requirements. The judge rejected Sgarlato’s

argument she should have been placed in a sedentary, part-time position in her prior unit,

because the county submitted evidence her former position didn’t exist by 2017 and

Sgarlato admitted she didn’t know whether the position existed at that time. Because

Sgarlato refused lower graded or lower paid positions, there was no indication there was

an accommodation that was available consistent with her preferences.

The judge also ruled against Sgarlato on the claim the county had failed to engage

in an interactive process. The judge concluded the evidence showed the county had

consistently communicated with Sgarlato about her accommodation requests. She

13 rejected Sgarlato’s argument the interactive process failed when her employer forced her

to sign the form acknowledging she could perform the job in Case Management without

accommodations. The judge held the form was not a statement that she couldn’t receive

accommodations, but only that no further accommodations were required for her to work

in the position she held at the time. The judge noted Sgarlato provided no evidence of any

other deficiencies in how the human resources department had conducted the interactive

process.

Sgarlato filed a notice of appeal on July 23, 2021. The judge entered judgment in

favor of the county on September 22, 2021. Though Sgarlato filed a proposed settled

statement in the superior court, she ultimately withdrew the request and elected to

proceed with the clerk’s transcript on appeal.

II

ANALYSIS

A. Disability Discrimination

Sgarlato argues the trial judge erred by holding she failed to present evidence

sufficient to create a triable issue of fact that she suffered disability discrimination.

To establish a prima facie case of disability discrimination under the FEHA,

Sgarlato was required to present evidence she (1) suffers from a disability, (2) is a

qualified individual, and (3) was subjected to an adverse employment action because of

the disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254.) The parties

agree Sgarlato suffered from a disability due to the on-the-job injury of her foot. They

14 also agree she was subjected to an adverse employment action due to the disability,

specifically that she was terminated from employment because her injury stopped her

from fulfilling the essential functions of her job as a nurse.

The question at summary judgment, and the question we now face, is whether

Sgarlato submitted enough evidence to create a triable question of fact as to whether she

was a qualified individual when the county terminated her. (See Green v. State (2007) 42

Cal.4th 254, 258 [“FEHA requires employees to prove that they are qualified individuals

under the statute just as the federal ADA requires”].) A qualified individual is a person

who can perform the essential functions of their employment. (Gov. Code, § 12940, subd.

(a)(1).) The essential functions of a job are the fundamental job duties of the position.

(Gov. Code, § 12926, subd. (f).) FEHA permits an employer to discharge a disabled

employee who, “because of a physical or mental disability, is unable to perform the

employee’s essential duties even with reasonable accommodations, or cannot perform

those duties in a manner that would not endanger the employee’s health or safety or the

health and safety of others even with reasonable accommodations.” (Gov. Code, § 12940,

subd. (a)(1).)

So, “in order to establish that a defendant employer has discriminated on the basis

of disability in violation of the FEHA, the plaintiff employee bears the burden of proving

he or she was able to do the job, with or without reasonable accommodation.” (Green v.

State, supra, 42 Cal.4th at p. 262.) “In disability discrimination actions, the plaintiff has

not shown the defendant has done anything wrong until the plaintiff can show he or she

15 was able to do the job with or without reasonable accommodation.” (Id. at p. 265.) If the

plaintiff introduces no evidence she was qualified to perform the essential functions of

the position from which she was terminated, the employer is entitled to summary

judgment. (E.g., Swonke v. Sprint Inc. (2004) 327 F.Supp.2d 1128, 1134.)

Thus, the question is whether there was enough evidence Sgarlato could work as a

Registered Nurse III at the time of her termination to warrant presenting the issue to a

jury. Sgarlato conceded she couldn’t perform the essential functions of the job as her

employer described them when she sought to return to work in 2017. The evidence is

uncontested that they told her the position would require more than sedentary work and

would be full-time. However, the issue is complicated by the fact Sgarlato had held

positions which allowed her to remain sedentary from June 2013 to July 2015.

Sgarlato relies on evidence of her past job performance to show she could work

under her work restrictions. In July 2013, when her restriction required sedentary work

only, the county accommodated her disability by finding her temporary positions and

later a permanent position in Case Management which allowed her to work at a desk. In

July 2015, after the confrontation with O’Rourke and her ensuing complaint, they moved

her to a temporary sedentary position in Quality Management. When her complaint was

found unsubstantiated in June 2016, she was supposed to return to Case Management, but

at that time she requested and obtained a medical leave due to psychological distress

caused in part by the prospect of returning to work for O’Rourke. The county doesn’t

contest she performed adequately from July 2013 to June 2016. Sgarlato points to this

16 evidence that she held and performed sedentary jobs in both those departments before her

time away as creating a fact dispute over whether she was qualified to perform the

essential functions of the job as a Registered Nurse III when the county terminated her.

However, the county claimed and presented evidence that by mid-2017, they no

longer had positions like the ones Sgarlato had occupied. Sgarlato sought to return to

work in April 2017, after clearing her emotional distress disability, 18 months after she

left her job in Case Management and eight months after she left the temporary position in

Quality Management. She provided a medical note releasing her to return to work with

the restrictions that she perform sedentary work three days a week for eight to 12 hours a

day while wearing supportive shoes with insoles. She later amended the restrictions to

allow her to work under the same conditions but for four days a week. The department

evaluated her request under the new work restrictions, performed a job analysis, and

determined they had no sedentary, part-time Registered Nurse III positions available at

that time. The department reported to human resources that the sedentary position

Sgarlato sought no longer existed due to a nursing shortage, the result of which was that

all nurses were expected to be able to work the floor of the hospital. The department

supervisor said making any nursing position part-time or sedentary would have required

changes to the essential functions of the position and would have been a hardship on the

department. Faced with this analysis, Sgarlato said she was unable to perform floor work

due to her restriction to sedentary work.

17 Sgarlato presented no evidence that a sedentary, part-time position did in fact exist

at the time, so she failed to create a question of material fact as to whether she was

qualified to perform the essential functions of the Registered Nurse III position. Her

reliance on Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th 245 does not help. Jensen

says that for reassignment to be a reasonable accommodation a “vacant position” must be

available to the disabled employee. (Id. at pp. 256, 264.) Though Sgarlato argues she

could work in the “desk job” she previously held, the uncontested evidence shows there

were no vacant “desk jobs” by the time she sought to return to work. As a result, we

conclude the trial judge did not err in determining Sgarlato could not prevail at trial on

her claim that her release from employment was discriminatory.

B. Failure to Prevent Discrimination

Sgarlato’s cause of action alleging the county didn’t prevent discrimination fails

for the same reason. To prevail on a claim under Government Code § 12940, subdivision

(k) for failure to prevent harassment or discrimination, a plaintiff must show (1) she was

subjected to harassment or discrimination, (2) the defendant failed to take all reasonable

steps to prevent harassment or discrimination, and (3) the failure caused the plaintiff to

suffer injury, damage, loss, or harm. (Lelaind v. City & Cnty. of San Francisco (2008)

576 F.Supp.2d 1079.) Here, since the evidence was insufficient to create a fact issue on

the existence of discrimination, it was similarly insufficient to create a fact issue whether

the county failed to prevent discrimination.

18 C. Failure to Accommodate the Disability

Sgarlato argues the evidence creates a fact question as to whether the county

violated Government Code section 12940, subdivision (m) by failing to accommodate her

disability and terminating her employment. To prevail, Sgarlato must prove (1) she had a

disability under the FEHA, (2) she was qualified to perform the essential functions of the

position, and (3) her employer failed to reasonably accommodate her disability. (Scotch

v. Art Institute California (2009) 173 Cal.App.4th 986, 1009-1010.) Sgarlato bears the

burden of proving she was able to do the job with reasonable accommodation. (Nadaf-

Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 977.)

As we’ve already discussed, Sgarlato has failed to present evidence she was

qualified to perform the essential functions of her job at the time of her termination. “An

employer is liable under [Government Code] section 12940(m) for failing to

accommodate an employee only if the work environment could have been modified or

adjusted in a manner that would have enabled the employee to perform the essential

functions of the job.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166

Cal.App.4th at p. 975.) Sgarlato was unable to work in her Registered Nurse III position

at the time she was released from employment. The only evidence concerning available

positions shows there were no part-time, sedentary positions that would have

accommodated her work restrictions, and the manager of the department said they

weren’t able to accommodate anyone by creating such a position due to shortages that

required all nursing positions to be staffed by people who could work the floor. Sgarlato

19 told the county she couldn’t do the job, and as a result she can’t prevail on her claim that

the county failed to accommodate her.

Sgarlato argues the county failed to accommodate her “starting about October 24,

2016, . . . [when they] failed to address [her] transfer request and her leave of absence

beyond October 24, 2016.” This decision by the county doesn’t serve as a basis for her

failure to accommodate claim. Sgarlato admits she was released from her emotional

distress restrictions in April 2017, after which only her physical restrictions remained.

The county released her from employment only when she could not be reasonably

accommodated in a nursing position due to her physical injury, not due to her emotional

distress restrictions.

D. Denial of Interactive Process

Sgarlato argues the county denied her an interactive process, in violation of

Government Code section 12940, subdivision (n). As with the discrimination and failure

to accommodate claims, “section 12940(n) imposes liability only if a reasonable

accommodation was possible.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra, 166

Cal.App.4th at p. 981.) “[A]n employee must identify a reasonable accommodation that

would have been available at the time the interactive process should have occurred.”

(Scotch v. Art Institute of California, supra, 173 Cal.App.4th at p. 1018.)

Sgarlato argues she wasn’t given the benefit of an interactive process. However,

the county presented evidence she was engaged in ongoing interactive processes for

years. The only evidence Sgarlato offers to support her claim “there was no interactive

20 process” comes in the form of the Employee Interactive Process Notes prepared by

human resources, but they in fact document the interactive process the county conducted

in 2017. As we described above, reasonable accommodation was not available to Sgarlato

at the time of her release from employment because she was unable to perform the

essential functions of her position or any alternate position she would consider. There

were no available nursing positions which met her restrictions, and she was unwilling to

take a non-nursing position. (Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376,

1389 [reassignment is required only where an “already funded, vacant position at the

same level exists”].) When there is no available accommodation, there is no need to

continue the interactive process. (Nadaf-Rahrov v. Neiman Marcus Group, Inc., supra,

166 Cal.App.4th at p. 984.)

Sgarlato does not offer any evidence to support her claim she was denied an

interactive process. We therefore conclude the trial judge didn’t err by holding her cause

of action for failure to engage in the interactive process fails.

E. Retaliation

Sgarlato argues the trial judge erred by granting summary judgment on her claim

for retaliation because she showed she engaged in protected activity when she sought

workers’ compensation, it’s uncontested she was terminated from employment, and she

established a causal link between the complaint and her termination.

To establish retaliation under Labor Code section 1102.5, the employee must show

“(1) she engaged in a protected activity, (2) her employer subjected her to an adverse

21 employment action, and (3) there is a causal link between the two.” (Mamou v. Trendwest

Resorts, Inc. (2008) 165 Cal.App.4th 686, 713.) To establish a causal link, the employee

must present evidence that the protected activity “was a ‘contributing factor’ to an

adverse employment action. (§ 1102.6.)” (Lawson v. PPG Architectural Finishes, Inc.

(2022) 12 Cal.5th 703, 712.)

Sgarlato argues she engaged in protected activity under Labor Code section 1102.5

when she complained “that her workers’ compensation case was settled in 2014, by her

former attorney without her consent, and the insurance did not inform her, so she could

get treatment somewhere else.” She points to federal district court cases accepting the

mere filing of a workers’ compensation claim as protected activity. Both the record

concerning her compensation claims and her arguments about them are problematic. As

the quotation from her brief shows, she appears to have filed a workers’ compensation

claim related to her foot injury in 2014 and had trouble with her attorney. But she also

filed an “industrial claim for work related stress” on June 20, 2016, which ultimately led

to her taking a medical leave of absence. We will assume, without deciding, that she is

correct that these acts constitute protected activity and also set aside potential problems

with the evidence that she made these complaints.

Sgarlato’s claim for retaliation nevertheless fails because there is no evidence to

support a jury’s inference of a causal link between the alleged protected activity and her

release from employment. To the extent Sgarlato’s position is that filing the 2014

workers’ compensation claim gave her employer a reason to retaliate, the timeline

22 doesn’t work. She filed that claim in 2014, when she was employed by the county in a

sedentary Registered Nurse III position they provided as an accommodation for her

injury. They accommodated her further by hiring her to a permanent sedentary position,

which she held until she requested to be transferred in July 2015. She’s presented no

evidence, not even temporal proximity, to allow an inference that her termination in 2017

was causally linked to the filing of that original workers’ compensation claim.

Sgarlato also points to her report of emotional distress in June 2016, which she

made after being directed to return to work in Case Management under the supervision of

O’Rourke. She argues “there was close proximity in time between [her] complaints and

the County’s retaliatory conduct.” She says she “was injured on June 20, 2016, when she

was told to go back to Utilization Review-Case Management Department, under the same

manager against whom she complained.” She then points out that three days later she was

“discharged from further medical care for her workers’ compensation claim regarding her

left foot injury and released to return to her regular work.” Sgarlato points out the

acknowledgement form the county asked her to sign around that time showed they had

received notice of the workers’ compensation case related to her foot injury. And indeed,

the acknowledgment says they received guidance concerning her work limitations in

September 2015 from a doctor involved in that workers’ compensation case. But the

purported connection between the claim she suffered a work injury and her subsequent

termination is obscure. The termination occurred in 2017, after the county had tried to

accommodate Sgarlato by giving her medical leave and after her psychologist had cleared

23 her to return to work. Even if temporal proximity were enough to raise a fact issue

concerning whether the termination occurred because of the protected conduct, we don’t

believe the proximity of the end of one workers’ compensation case and the onset of

another medical condition requiring leave could support finding a nexus.

We therefore conclude the trial judge properly granted summary judgment on her 1 retaliation claim.

III

DISPOSITION

We affirm the judgment. Respondent shall recover their costs of appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

RAPHAEL

J.

1Sgarlato argues we should reverse the trial judge because she wasn’t provided a hearing prior to her termination. However, she made no such due process claim in her complaint in the trial court, so the issue is not before us. (Turner v. State of California (1991) 232 Cal.App.3d 883, 891.)

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