Plaintiff Karla Garcia-Laverentz filed a complaint against her employer Sedgwick Claims Management Services, Inc., alleging a myriad of disability-related claims under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.; FEHA) and other laws.

Plaintiff suffered from depression and anxiety, which she controlled with medication. She also suffered from asthmatic bronchitis. Following her return to work after a bronchitis episode, she expressed concern about the environment and requested that the air ducts be cleaned. She then filed a workers’ compensation claim alleging an unhealthy work environment after she suffered another episode.

While out on leave, plaintiff learned she was pregnant, so her doctor took her off of her psychotropic and other medications. When she returned to work she asked to be allowed to stay away from ill employees and for the first time requested Sedgwick change the location of her desk such that it is away from any heater or air conditioning vents.

Sedgwick retained engineers to conduct an air quality study, which did not uncover any dangerous air contaminants. Plaintiff experienced another attack of bronchitis and never returned to work after that. She was granted disability leave which was extended at times. Subsequently, she believed that Sedgwick had terminated her position. But her doctors continued to submit notes with estimates of return dates. But she never returned to work. Nor did she ever tell Sedgwick she could return. In fact, she had no contact with Sedgwick from late July 2010 until she moved to Fresno in October 2011.

Following her filing of a civil action, Sedgwick moved for summary judgment, which the trial court granted. In a detailed order, the trial court concluded the undisputed evidence demonstrated plaintiff did not suffer the adverse employment action of termination as she argued, and Sedgwick reasonably accommodated her disability and engaged in the good faith interactive process. Those holdings were dispositive of all of plaintiff’s claims. The plaintiff appealed. The Court of Appeal affirmed the dismissal in the unpublished case of Karla Garcia-Laverentz v. Sedgwick Claims Management Services, Inc.

The Court noted that “Throughout this litigation, plaintiff’s theory of adverse employment action has been a moving target. First, in her prelitigation complaint filed with the Department of Fair Employment and Housing (DFEH), in the FAC, and during discovery, she claimed she was terminated on May 27, 2010, as shown by the June 7 letter. In opposition to summary judgment, she expanded that theory to argue she was terminated when she received the July 28 letter indicating her position would be filled for business reasons. Now, for the first time in her opening brief on appeal, she further argues she suffered an adverse employment action short of termination  when Sedgwick indicated in the July 28 letter it intended to fill her position. And in her reply brief, she argues the “retaliation” she allegedly faced for exercising her rights constituted an adverse employment action. …..We find she waived the last two theories because she raised them for the first time on appeal.

“In her declaration opposing summary judgment, plaintiff expressed her subjective belief the June 7 letter, and later the July 28 letter, indicated she had been terminated. Her belief alone is not enough to defeat summary judgment.”

The trial court concluded plaintiff failed to raise a triable issue of fact over the reasonableness of two accommodations provided by Sedgwick: (1) granting plaintiff medical leaves of absence; and (2) moving her desk away from vents in the office. On appeal, plaintiff does not challenge the trial court’s holding that her leaves of absence were reasonable accommodations. Nor could she do so successfully. “[A] finite leave can be a reasonable accommodation under FEHA, provided it is likely that at the end of the leave, the employee would be able to perform his or her duties.”