Filed 1/20/15 Gonzalez v. 3M Unitek Corp. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


ALEJANDRA GONZALEZ,                                                  B253735

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC493991)
         v.

3M UNITEK CORPORATION,

         Defendant and Respondent.




                   APPEAL from a judgment of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Affirmed.


                   Law Offices of Ramin R. Younessi, Ramin R. Younessi, Glen H. Mertens,
Allison M. Schulman and Christina Coleman for Plaintiff and Appellant.


                   Seyfirth Shaw, Laura Wilson Shelby, Kiran Aftab Seldon and Jamie Chanin
Pollaci for Defendant and Respondent.


                               ____________________________________
                                   INTRODUCTION
      Plaintiff and appellant Alejandra Gonzalez was employed as an at-will machine
operator by defendant and respondent 3M Unitek Corporation (3M). After working for
several years in that position, Gonzalez began experiencing severe pain in her right arm,
right shoulder, and neck, which she believed to be caused by the continuous and
repetitive arm movements required by her job. After 3M rotated Gonzalez through
various assignments and placed her on several periods of disability leave, including a
period of leave lasting more than two years, it terminated her employment after
determining there were no available positions matching her qualifications and pay grade
that she was able to perform with or without accommodation for her medical restrictions.
Gonzalez sued 3M for, among other things, wrongful termination and violations of the
Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).1 The trial
court granted 3M’s motion for summary judgment and entered judgment in favor of 3M.
We affirm.
                             FACTUAL BACKGROUND
      In September 2007, 3M hired Gonzalez as an at-will machine operator in its
manufacturing plant in Monrovia, California, where the company manufactures
orthodontic products. As a machine operator, Gonzalez was required to weld
components of 3M’s work orders. To complete these tasks, Gonzalez frequently
performed continuous and repetitive movements with her arms and hands.
      Between April 2008 and February 2009, Gonzalez took three medical leaves of
absence for various medical reasons, each ranging from five to seven days. After each
leave, 3M allowed Gonzalez to return to her previous position without any change in pay.
      Around May 2009, Gonzalez began experiencing pain in her neck and right
shoulder, which she believed was caused by the continuous and repetitive movements



1
       All further statutory references are to the Government Code unless otherwise
specified.

                                            2
required for her welding assignments. Gonzalez consulted two doctors for her pain and
submitted several disability claim forms to 3M during May and June 2009. As a result,
3M placed Gonzalez on paid medical leave from May 13 through July 1, 2009.
          When Gonzalez returned to work in July 2009, her doctors imposed medical
restrictions on her working conditions that required her to regularly alternate tasks,
change physical positions, and stretch. 3M allowed Gonzalez to utilize these restrictions
when she returned to her previous assignment. Nevertheless, Gonzalez soon complained
to one of 3M’s nurses that she could not work through her pain even when she utilized
her restrictions.
          On July 21, 2009, Gonzalez consulted another doctor about her pain. The doctor
issued her a note releasing her from work for two days. On July 23, 2009, she consulted
the same doctor, who issued a second note restricting her to a desk job.
          When Gonzalez returned at the end of July 2009, 3M assigned her to a position
that allowed her to sit while she worked but still required her to make repetitive
movements with her arms while assembling products. Gonzalez continued to experience
severe pain while she worked, and she again complained to 3M’s nurse. She was then
reassigned to a position that allowed her to alternate between various assembly-line
duties.
          Despite being rotated through positions, Gonzalez continued to experience pain
and was placed on medical leave for nearly two weeks, from August 4, 2009 through
August 17, 2009. By the time Gonzalez returned to work near the end of August 2009,
another doctor had imposed additional restrictions on her working conditions, requiring
her to avoid flexing and extending her cervical spine for a prolonged period of time and
prohibiting her from lifting objects weighing more than 10 pounds.
          Between August 2009 and February 2010, 3M rotated Gonzalez through several
assignments that allowed her to alternate between sitting and standing positions and did
not require her to flex or extend her spine for prolonged periods of time. Throughout this
time, Gonzalez participated in 3M’s daily employee-led stretching program, and 3M
allowed Gonzalez to stand up and stretch whenever she needed.

                                              3
       On February 15, 2010, Gonzalez was again placed on medical leave due to severe
pain she continued to experience in her right arm, lower back, and neck. Although
Gonzalez’s leave was originally set to end on March 28, 2010, 3M allowed her to remain
on leave for more than two years, until August 2012, when her employment was
terminated. During this period, several of Gonzalez’s doctors cleared her to return to
work at various times; however, after meeting with 3M on several occasions, Gonzalez
was allowed to remain on leave after she expressed that she could not return to work due
to the excruciating pain she continued to experience. 3M continued to pay Gonzalez
throughout this period of leave. For the first three months, 3M paid Gonzalez her regular
wages; for the remaining period of leave, 3M supplemented Gonzalez’s disability
payments she was receiving from the state to ensure that her payments never dropped
below 60 percent of her normal wages.
       In April 2011, Gonzalez underwent neck surgery to fuse one of her cervical discs.
Following her surgery, Gonzalez’s medical leave was extended through June 2011. On
June 3, 2011, one of Gonzalez’s doctors issued a disability status report authorizing her to
return to work with the following restrictions: “No lifting greater [than] 10 pounds for
right upper extremity and no prolong[ed] upward or downward gaze until 6-23-11 and
regular duty as of 6-24-11.” As of June 3, 2011, 3M did not have any available positions
that could accommodate Gonzalez’s restrictions, so Gonzalez remained on medical leave.
       On July 21, 2011, Dr. John C. Steinmann cleared Gonzalez to return to work with
no restrictions. However, Gonzalez informed Hilda Reyes, 3M’s human resources
manager, that she did not believe she could begin working again because she was still
experiencing intolerable pain when she used her right arm and right shoulder. Reyes told
Gonzalez that she should continue resting and consulting her doctor until she felt better.




                                             4
       On July 29, 2011, Dr. Steinmann issued a permanent and stationary status report, 2
which stated that Gonzalez had reached a point of “maximum medical improvement,”
and that she was not able to return to her usual and customary duties. The report also
stated that Gonzalez should receive a prophylactic restriction precluding her from
engaging in the repetitive use of her upper right arm. According to the report, Gonzalez
continued to experience pain in her head, neck, right shoulder, and right hand, as well as
numbness and a tingling sensation running from her right arm through the fingertips of
her right hand.
       Reyes received Dr. Steinmann’s July 29, 2011 permanent and stationary status
report. According to her, there were no vacant positions in any department at 3M’s
Monrovia plant at the time she received the report. However, she and members of 3M’s
management internally discussed creating a new full-time position, or vacating a position
occupied by a contract worker employed by a third party and converting that position into
a full-time assignment for Gonzalez.
       After Reyes received Gonzalez’s permanent and stationary status report, she
consulted with Charlie Nguyen, 3M’s Monrovia plant manufacturing product manager,
who had also received the report, to review existing but non-vacant positions at the
Monrovia plant that could potentially accommodate Gonzalez’s restrictions. Reyes and
Nguyen ultimately selected five positions that they believed Gonzalez was qualified to
perform based on her skills and work history at 3M, as well as her work history at her
previous places of employment.3 Those positions were: (1) Production Operator in 3M’s


2
       “‘“A disability is considered permanent after the employee has reached maximum
improvement or his condition has been stationary for a reasonable period of time.”’
[Citation.]” (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 220, fn. 2
(Hanson).)
3
       Prior to working at 3M as a full-time employee, Gonzalez held the following
positions: a salesperson at a clothing store; a cashier assistant at Costco; a secretary
responsible for handling only paperwork at an audio store; a product painter for an
orthopedic-product manufacturer; and an accountant’s assistant and secretary in Mexico.
During her deposition, Gonzalez testified that she is not entirely fluent in English.
                                             5
Bands department; (2) Senior Production Operator in 3M’s Precoat department; (3)
Senior Welder Operator in 3M’s Preweld department; (4) Senior Production Operator in
3M’s Brazed Assembly department; and (5) Production Operator Specialist in 3M’s Wire
department.
         Even though none of these positions were available at the time, Reyes and Nguyen
concluded Gonzalez would nevertheless not have been able to perform the essential
functions of the first four positions due to her no-repetitive-use restriction. According to
3M’s official job descriptions, each of the positions involved manual tasks that would
have required constant and repetitive movement of Gonzalez’s entire right arm. Reyes
and Nguyen were not aware of any modifications that could have been made to these
positions to accommodate Gonzalez’s restrictions. As for the Production Operator
Specialist position, Reyes and Nguyen removed it from their consideration because
placing Gonzalez in that position would have required 3M to promote her to a higher pay
grade.
         After consulting with Nguyen, Reyes informed Gonzalez that there were no
positions available at 3M’s Monrovia plant that could accommodate her no-repetitive-use
restriction. Gonzalez then requested that 3M terminate her employment so that she could
collect unemployment benefits, but Reyes denied the request. 3M then placed Gonzalez
on inactive status and allowed her to remain on medical leave.
         On September 15, 2011, Gonzalez consulted Dr. Steinmann to request that he lift
her permanent restrictions and authorize her to return to her regular duties at 3M. Dr.
Steinmann refused Gonzalez’s request because he believed that she remained at a point of
maximum medical improvement and that lifting her restrictions would exacerbate her
injuries. Dr. Steinmann issued a report continuing Gonzalez on her prior permanent and
stationary work status.
         On January 5, 2012, Gonzalez again consulted Dr. Steinmann to request that he lift
her permanent restrictions. According to Gonzalez, she believed that returning to her
regular duties would enable her to take her mind off of her pain. Dr. Steinmann granted
Gonzalez’s request and issued a report stating that Gonzalez could return to work with no

                                              6
restrictions. However, the report also stated that Gonzalez’s work status remained as
“per permanent and stationary.”
       After receiving Dr. Steinmann’s January 5, 2012 report, Gonzalez informed Reyes
that she had been cleared to return to work. Reyes told Gonzalez that 3M had no
positions available at that time, but that the company would contact her if any positions
became available.
       When 3M’s third-party claims manager received Dr. Steinmann’s January 5, 2012
report, she requested clarification from Dr. Steinmann because the report appeared
contradictory, as it stated that Gonzalez’s work status remained “permanent and
stationary” but also stated that Gonzalez was able to return to work without restrictions.
On January 30, 2012, Dr. Steinmann responded with a letter stating that he had recently
examined Gonzalez and determined that she had “recovered well enough to resume her
usual and customary duties.”
       On February 7, 2012, Gonzalez returned to Dr. Steinmann for another consultation
because she continued to experience severe pain in her right shoulder that precluded her
from working for more than five minutes at a time. Dr. Steinmann then issued a new
status report stating that he “would like to amend [his] prior opinion and place [Gonzalez]
at her previous permanent and stationary status with the work restriction of no overhead
use of the right upper extremity.”
       3M allowed Gonzalez to remain on medical leave for another six months, until it
terminated her employment in August 2012. 3M began the process of terminating
Gonzalez’s employment after 3M’s disability coordinator informed Reyes that all of
Gonzalez’s available leave had expired. Reyes reviewed Gonzalez’s leave notices,
permanent restrictions, and 3M’s relevant job descriptions to determine whether
Gonzalez could return to work. Reyes later discussed this information with Nguyen and
Bob Manneman, 3M’s Monrovia plant manager, at which point they decided to
recommend Gonzalez’s termination to 3M’s employee relations manager.




                                             7
       On August 13, 2012, 3M sent Gonzalez a letter terminating her employment. The
letter stated that 3M was terminating Gonzalez’s employment because she was no longer
eligible for medical leave, and she remained unable to return to work with or without
reasonable accommodation. The letter also informed Gonzalez that 3M had filled her
previous position because the company had been unable to hold the position open
indefinitely. According to Gonzalez, the date she received her termination letter was the
first time she had been contacted by 3M since January 2012.
                            PROCEDURAL BACKGROUND
Gonzalez’s Complaint
       On October 11, 2012, Gonzalez, through her attorney, submitted a discrimination
complaint with the California Department of Fair Employment and Housing (DFEH),
requesting a right to sue 3M for disability discrimination. That same day, DFEH issued
Gonzalez a right to sue letter.
       On October 17, 2012, Gonzalez filed a lawsuit against 3M, alleging six causes of
action stemming from her termination: (1) breach of the covenant of good faith and fair
dealing; (2) disability discrimination in violation of FEHA; (3) wrongful termination in
violation of public policy; (4) retaliation; (5) failure to provide a reasonable
accommodation in violation of FEHA; and (6) failure to engage in a good-faith
interactive process in violation of FEHA. The complaint alleged that Gonzalez suffered
lost earnings and benefits, and general damages in the form of physical and psychological
injuries, which would require her to incur ongoing medical expenses. As to the second
through fourth causes of action, Gonzalez sought punitive damages, alleging that her
superiors at 3M acted with malice and oppression when they terminated her employment.
3M’s Motion for Summary Judgment
       3M moved for summary judgment or in the alternative summary adjudication. 3M
argued that Gonzalez could not prevail on her claim for breach of the covenant of good
faith and fair dealing because she did not have an employment contract with 3M. With
respect to Gonzalez’s FEHA claims, 3M argued that she could not prevail on any of the
claims, alleging that she failed to exhaust her administrative remedies because she did not

                                              8
certify her discrimination complaint filed with DFEH. With respect to Gonzalez’s
request for punitive damages, 3M argued that it was undisputed that no 3M employee
acted with malice, fraud, or oppression in terminating Gonzalez’s employment.
       3M also sought summary adjudication of Gonzalez’s FEHA, retaliation, and
wrongful termination claims on the ground that Gonzalez’s medical restrictions and work
experience rendered her unable to perform the essential functions of any position for
which she was qualified. In other words, 3M argued that it was undisputed that there
were no reasonable accommodations available that both suited Gonzalez’s medical
restrictions and matched her qualifications.
       In support of its motion, 3M submitted the following material: Gonzalez’s
deposition testimony; declarations executed by Reyes, Nguyen, Manneman, 3M’s third-
party claims manager, and 3M’s regional employee relations manager; copies of 3M’s
official job descriptions for the five positions considered by Reyes and Nguyen; and
numerous medical reports issued by Gonzalez’s doctors, including Dr. Steinmann’s
February 7, 2012 primary and stationary status report. In that report, Dr. Steinmann
observed: “When I last saw [Gonzalez] she had a desire to return to work without
restrictions. It was my opinion that the patient showed improvement with good strength
and motion and felt that she should be given the opportunity to try and return. However,
according to [Gonzalez], she states that she is unable to work more than five minutes. I
am unsure at this point if she is even working. This patient continues to exhibit
abnormal-illness behavior and is unreliable when it comes to describing her symptoms.
At this point, I would like to amend my prior opinion and place her at her previous
permanent and stationary status with the work restriction of no overhead use of the right
upper extremity.” The report lists Gonzalez’s “disability status” as “No overhead use of
the right upper extremity.” Although the February 7, 2012 report does not reference
Gonzalez’s no-repetitive-use restriction, during her deposition, Gonzalez testified that,
after February 7, 2012, she was subject to both the no-overhead-use and no-repetitive-use
work restrictions.


                                               9
Gonzalez’s Opposition
       In her opposition to 3M’s motion, Gonzalez argued, among other things, that a
triable issue existed as to whether 3M discriminated against her on the basis of her
physical disability when it terminated her employment in August 2012 after her disability
leave expired. She also argued that triable issues existed as to whether 3M failed to
reasonably accommodate her medical restrictions and failed to engage in a good-faith
interactive process. Specifically, Gonzalez asserted that Reyes’s and Nguyen’s
evaluations of only five positions as potential accommodations for Gonzalez’s medical
restrictions was inadequate to establish that 3M could not reasonably accommodate
Gonzalez’s restrictions. She also claimed that Reyes and Nguyen failed to adequately
consider whether 3M could convert one of the contract positions occupied by third-party
employees into a full-time position that could accommodate her medical restrictions. She
further asserted that Reyes failed to adequately communicate with her between July 2011,
when her first permanent medical restrictions were issued, and August 2012, when her
employment was terminated, to satisfy 3M’s obligation to engage in a good-faith
interactive process.
       With her opposition, Gonzalez submitted her own declaration in which she stated
that, leading up to, and at the time of, her termination, she was capable of performing
without restrictions her previous kits, staging, welding, boxing, and pre-coat positions, as
well as positions as Senior Welder Operator in the Preweld department, Senior
Production Operator in the Facebow department, Senior Production Operator in the
Bands department, and Production Operator in the Brazed Assembly department. She
also stated that she was able to perform without restrictions numerous contract positions
at 3M’s Monrovia plant.
       Gonzalez also submitted her own deposition testimony, as well as the deposition
testimony of Reyes, Nguyen, 3M’s third-party claims manager, and 3M’s regional
employee relations manager. Gonzalez further submitted numerous documents,
including medical reports issued by her doctors and a list of contract positions at 3M’s


                                             10
Monrovia plant denoting the department in which each position was located and the date
each position was filled.4
       Finally, Gonzalez submitted official job descriptions for numerous positions at
3M’s Monrovia plant. Four of the positions located in Gonzalez’s pay grade did not list
overhead work as a physical demand, but did list repetitive motion of the worker’s arms
and hands as a physical demand. Those positions were: Senior Welder Operator in the
Preweld department; Senior Production Operator in the Facebow department; Production
Operator in the Bands department; and Senior Production Operator in the Brazed
Assembly department. The Senior Production Operator position in the Punch Press
department, which was also located in Gonzalez’s pay grade, did not list repetitive
motion of the worker’s arms and hands as a physical demand, but did list overhead work
as a physical demand.
3M’s Evidentiary Objections
       In response to Gonzalez’s opposition, 3M objected to the portions of Gonzalez’s
declaration in which she stated that she was able to perform the essential functions of
certain contract and non-contract positions at 3M’s Monrovia plant without medical
restrictions. 3M objected to these statements on the grounds that they were irrelevant,
lacked foundation, and called for expert opinion.
The Trial Court’s Rulings
       Prior to ruling on the motion for summary judgment, the trial court sustained 3M’s
objections to Gonzalez’s declaration.5 The trial court then granted summary judgment



4
       The list of contract positions did not specify the physical demands for each
contract position or whether any of the contract positions had been vacated since the time
they were filled.
5
       During oral argument, Gonzalez’s counsel argued the statements made in
Gonzalez’s declaration to which the trial court sustained 3M’s objections constitute
evidence from which a triable issue was raised as to Gonzalez’s ability to perform the
essential duties of certain positions at 3M. However, in her opening and reply briefs,
Gonzalez does not argue that the trial court erred in sustaining 3M’s objections.
                                            11
for 3M. With respect to Gonzalez’s claim for breach of the covenant of good faith and
fair dealing, the court found that it was undisputed that Gonzalez did not enter into an
employment contract with 3M. The court also found there was no evidence
demonstrating that Gonzalez was able to perform, with or without accommodation, any
vacant or non-vacant positions for which she was qualified at 3M’s Monrovia plant.
Specifically, the court found that, after Dr. Steinmann issued his February 7, 2012
permanent and stationary status report, Gonzalez was subject to two work restrictions: no
overhead use of her right arm and no repetitive use of her upper right arm. Based on its
finding that Gonzalez could not perform any position at the Monrovia plant with or
without accommodation, the court found that Gonzalez could not prevail as a matter of
law on any of her FEHA, retaliation, or wrongful termination claims. Finally, the court
found there was no evidence that any 3M employee acted with malice, fraud, or
oppression in terminating Gonzalez’s employment from 3M. Accordingly, the court
granted 3M summary adjudication as to Gonzalez’s request for punitive damages.
       The court entered judgment in 3M’s favor, and this timely appeal followed.
                                      DISCUSSION
       Gonzalez contends triable issues of fact exist as to four of the six causes of action
alleged in her complaint. Specifically, Gonzalez argues that, based on the evidence
before the trial court on 3M’s motion for summary judgment, a reasonable jury could
have concluded the following: (1) 3M impermissibly discharged her based on her
physical disability; (2) 3M failed to reasonably accommodate her physical disability; (3)
3M failed to engage in a good-faith interactive process aimed at accommodating her


Accordingly, we consider Gonzalez’s statements to which the trial court sustained 3M’s
objections to have been properly excluded and not part of the evidence from which a
triable issue could be raised for purposes of summary judgment. (See Villanueva v. City
Of Colton (2008) 160 Cal.App.4th 1188, 1196 (Villanueva) [“‘[W]here a plaintiff does
not challenge the superior court's ruling sustaining a moving defendant's objections to
evidence offered in opposition to the summary judgment motion, “any issues concerning
the correctness of the trial court's evidentiary rulings have been waived. . . . We therefore
consider all such evidence to have been ‘properly excluded.’” [Citations.]’”].)

                                             12
physical disability; and (4) 3M wrongfully discharged her in violation of public policy.
On appeal, Gonzalez does not challenge the trial court’s grant of summary adjudication
as to her claims for retaliation and breach of the covenant of good faith and fair dealing.
Gonzalez also does not challenge the court’s grant of summary adjudication as to her
request for punitive damages.
I.     Standard of Review
       On appeal from a grant of summary judgment, we review the record and the ruling
of the trial court de novo. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
We consider all the evidence set forth in the moving and opposition papers, except that
evidence to which objections have been made and sustained. (Ibid.) However, “[w]e do
not resolve conflicts in the evidence as if we were sitting as the trier of fact. [Citation.]
Instead, we draw all reasonable inferences from the evidence in the light most favorable
to the party opposing summary judgment. [Citation.]” (Nadaf-Rahrov v. Neiman Marcus
Group, Inc. (2008) 166 Cal.App.4th 952, 961 (Nadaf-Rahrov).)
       A grant of summary judgment is proper if the evidence set forth shows that there
is no triable issue as to any material fact and that the moving party is entitled to judgment
as a matter of law. (Code Civ Proc. § 437c, subd. (c); see also Guz, supra, 24 Cal.4th at
p. 334.) “There is a triable issue of material fact if, and only if, the evidence would allow
a reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
       For summary judgment in the employment discrimination context, “‘“[i]f the
employer presents admissible evidence either that one or more of plaintiff's prima facie
elements is lacking, or that the adverse employment action was based on legitimate,
nondiscriminatory factors, the employer will be entitled to summary judgment unless the
plaintiff produces admissible evidence which raises a triable issue of fact material to the
defendant's showing. . . .” [Citation.]’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th
327, 344 (Arteaga); italics in original.)


                                              13
II.    The FEHA Claims
       Three of the four claims for which Gonzalez contends triable issues of material
fact exist allege separate violations of FEHA. (See § 12940, subds. (a), (m), & (n).)
Under FEHA, it is illegal for an employer, “because of the . . . physical disability . . . of
any person, . . . 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).) It is not illegal, however, for an employer to discharge an employee
where, “because of his or her physical or mental disability, [the employee] is unable to
perform his or her essential duties even with reasonable accommodation, or cannot
perform those duties in a manner that would not endanger his or her health or safety
. . . .” (§ 12940, subd. (a)(1).) To establish a prima facie case of disability
discrimination, a discharged employee must establish that (1) she suffers from a
disability; (2) she is otherwise qualified to do her job; and (3) she was subjected to
adverse employment action because of her disability. (Arteaga, supra, 163 Cal.App.4th
at pp. 344-345.)
       It is separately actionable under FEHA for an employer to fail “to make
reasonable accommodation for the known physical or mental disability of an applicant or
employee . . . ,” unless to do so would create an undue hardship for the employer’s
operation. (§ 12926, subd. (m); see also § 12926, subd. (u) [hardship defined].) “The
elements of a failure to accommodate claim are similar to the elements of a . . .
[disability] discrimination claim . . . .” (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 256 (Jensen).) To establish a claim for failure to accommodate, a
discharged employee must demonstrate (1) she has a disability under FEHA, (2) she is
qualified to perform the essential functions of a relevant position, and (3) her employer
failed to reasonably accommodate her disability. (Scotch v. Art Institute of California-
Orange County, Inc. (2009) 173 Cal.App.4th 986, 1009-1010 (Scotch).)
       Finally, under section 12940, subdivision (n), it is separately actionable for an
employer to fail “to engage in a timely, good faith, interactive process with the employee
. . . to determine effective reasonable accommodations, if any, in response to a request for

                                              14
reasonable accommodation by an employee . . . with a known physical or mental
disability or known medical condition.” (§ 12940, subd. (n); Gelfo v. Lockheed Martin
Corp. (2006) 140 Cal.App.4th 34, 54 (Gelfo).) To prevail on a claim for failure to
engage in a good-faith interactive process, “an employee must identify a reasonable
accommodation that would have been available at the time the interactive process should
have occurred.” (Scotch, supra, 173 Cal.App.4th at p. 1018; see also Nadaf-Rahrov,
supra, 166 Cal.App.4th at p. 984.)
          A. Reasonable Accommodation
       Gonzalez’s challenge to the trial court’s grant of 3M’s motion for summary
judgment primarily revolves around the court’s determination that there was no triable
issue as to whether Gonzalez was able to perform the essential functions of any position
at 3M’s Monrovia plant for which she was qualified, with or without accommodation.
Under FEHA, once an employee notifies her employer of a physical disability, the
employer must “take ‘positive steps’ to accommodate the employee’s limitation . . . .
[Citations.]” (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 (Raine).)
Once both parties are aware of the disability, they are expected to cooperate and
exchange information with the goal of finding a suitable match between the employee’s
capabilities and the employer’s available positions. (Id. at pp. 1222-1223, citing
Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950 (Prilliman).)
       FEHA requires the employer to provide its disabled employee with a “reasonable
accommodation”; it does not require an employer to provide the disabled employee with
“the best accommodation or the specific accommodation” the employee requests. (§
12940, subds. (a) & (m); Raine, supra, 135 Cal.App.4th at p. 1223.) 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.” (Scotch, supra,
173 Cal.App.4th at p. 1010.) This may include “(1) Making existing facilities used by
employees readily accessible to, and usable by, individuals with disabilities. [¶] [Or] (2)
[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices, adjustment or

                                            15
modifications of examinations, training materials or policies, the provision of qualified
readers or interpreters, and other similar accommodations for individuals with
disabilities.” (Ibid.) A reasonable accommodation may also include a finite leave of
absence. (Jensen, supra, 85 Cal.App.4th at p. 263; see also Cal. Code Regs., tit. 2, §
11068, subd. (c).) However, an employer is not obligated to hold a position open
indefinitely while it waits for an employee’s physical disability to be corrected. (Hanson,
supra, 74 Cal.App.4th at pp. 226-227.)
       “‘If the employee cannot be accommodated in his or her existing position and the
requested accommodation is reassignment, an employer must make affirmative efforts to
determine whether [another] position is available. [Citation.] A reassignment, however,
is not required if “there is no vacant position for which the employee is qualified.”
[Citations.]’” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766-767.)
“‘The responsibility to reassign a disabled employee who cannot otherwise be
accommodated does “not require creating a new job, moving another employee,
promoting the disabled employee or violating another employee’s rights . . . .”
[Citations.]’” (Id. at p. 767.)
       To prevail on a claim under section 12940, subdivision (m), the employee bears
the burden of proving the ability to perform the essential functions of a job with
accommodation. (Nadaf-Rahrov, supra, 166 Cal.App.4th at p. 977.) However, for an
employer to prevail at the summary judgment stage on such a claim, it must establish
through undisputed facts at least one of the following: “(1) [a] reasonable accommodation
was offered and refused; (2) there simply was no vacant position within the employer’s
organization for which the disabled employee was qualified and which the disabled
employee was capable of performing with or without accommodation; or (3) the
employer did everything in its power to find a reasonable accommodation, but the
informal interactive process broke down because the employee failed to engage in
discussions in good faith.” (Jensen, supra, 85 Cal.App.4th at p. 263.)
       Gonzalez contends the trial court erred in finding no triable issues of material fact
exist as to whether 3M failed to reasonably accommodate her medical restrictions. First,

                                             16
she argues 3M failed to establish that, at the time Dr. Steinmann issued the July 29, 2011
permanent and stationary status report, there were no other positions available at the
Monrovia plant that could have accommodated her no-repetitive-use restriction. Second,
she argues 3M failed to establish that it could not have modified any of the positions it
considered as accommodations. Third, Gonzalez argues 3M failed to establish that it
could not have converted any of the positions that it contracted with third parties to
perform into a full-time accommodating position. Finally, she argues 3M failed to
establish that it undertook a separate analysis to determine whether she could perform the
essential functions of any positions at the Monrovia plant in light of the no-overhead-use
restriction imposed by Dr. Steinmann in his February 7, 2012 permanent and stationary
status report. We address these contentions in turn.
            i.   Availability of accommodating full-time positions between July 29,
                 2011 and February 7, 2012
       Gonzalez first contends the trial court erred in finding it was undisputed that 3M
had no available full-time positions that she could perform with accommodation between
the time Dr. Steinmann issued the first permanent and stationary status report on July 29,
2011 and the time he issued the second status report on February 7, 2012. Specifically,
Gonzalez argues 3M’s consideration of only five positions as potential accommodations
did not establish that the company had no positions available that Gonzalez could
perform with her no-repetitive-use restriction. We disagree.
       First, at the time Dr. Steinmann issued the July 29, 2011 status report, Gonzalez
could not perform the required tasks of her prior position, and 3M had no other positions
available in any of its departments at its Monrovia plant. “[An] employer is not required
to create new positions or ‘bump’ other employees to accommodate the disabled
employee.” (McCullah v. Southern California Gas Co. (2000) 82 Cal.App.4th 495, 501.)
Accordingly, the fact that 3M considered only a limited number of non-vacant positions
as potential future accommodations does not give rise to a claim for failure to reasonably
accommodate when 3M had no positions available aside from Gonzalez’s prior position,
which she could no longer perform. (See Spitzer v. Good Guys, Inc. (2000) 80

                                             17
Cal.App.4th 1376, 1389 (Spitzer) [an employer is not required to reassign an employee if
“there is no vacant position for which the employee is qualified”].)
       Second, Gonzalez admitted during discovery that 3M reasonably accommodated
her medical restrictions by allowing her to remain on leave from the time Dr. Steinmann
issued the July 29, 2011 status report up to the time he issued the second status report on
February 7, 2012. On summary judgment, “[a]dmissions contained in depositions and
interrogatories are admissible in evidence to establish any material fact.” (Leasman v.
Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380.) A party opposing summary
judgment cannot avoid her own prior admission obtained during discovery demonstrating
that no factual issue exists by later submitting a sworn statement contradicting the prior
admission. (Prilliman, supra, 53 Cal.App.4th at p. 961; see also D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 21 (D’Amico) [“‘Where, as here, however, there
is a clear and unequivocal admission by the plaintiff . . . in his deposition . . . we are
forced to conclude there is no substantial evidence of the existence of a triable issue of
fact.’ [Citation.]”]; King v. Anderson (1966) 242 Cal.App.2d 606, 610 [where plaintiff
admits in prior deposition that the defendant used no force in an assault case, the
plaintiff’s statement in a later executed affidavit that the defendant in fact used
unnecessary force does not create a triable issue of fact as to the force element of
assault].)
       During her deposition, Gonzalez admitted that she did not take issue with 3M’s
accommodation of her medical restrictions prior to the time Dr. Steinmann issued the
second status report on February 7, 2012. She testified that 3M adequately
accommodated her medical restrictions by allowing her to remain on medical leave after
Dr. Steinmann issued the July 29, 2011 status report. She further testified that 3M
satisfactorily engaged with her in dialogue about her medical condition during the period
between July 29, 2011 and February 7, 2012. Further, it was undisputed that 3M had no
positions available between that time period; 3M presented evidence that it had no
positions available in July 2011 and January 2012, and Gonzalez presented no evidence
to the contrary. Accordingly, Gonzalez cannot now argue that 3M failed to reasonably

                                              18
accommodate her physical disability between July 29, 2011 and February 7, 2012 in
order to raise a triable issue without citing evidence demonstrating that, during that
period, 3M in fact had available positions that she could perform with accommodation.
(See D’Amico, supra, 11 Cal.3d at p. 21.)
            ii.   Availability of accommodating modifications after July 29, 2011
       Gonzalez next contends 3M failed to establish that, after Dr. Steinmann issued the
July 29, 2011 status report, no modifications could have been made to any of the
positions Reyes and Nguyen reviewed to accommodate her no-repetitive-use restriction.
We disagree.
       3M presented sufficient evidence to establish no triable issue exists as to whether
3M could have modified any of the positions reviewed by Reyes and Nguyen to
accommodate Gonzalez’s no-repetitive-use restriction. In his declaration, Nguyen
testified that he was not aware of any adequate modifications that could have been made
to the four positions matching Gonzalez’s qualifications and pay grade that he discussed
with Reyes after the July 29, 2011 status report was issued. According to Nguyen, the
essential tasks of each of these positions required the assigned worker to engage in
repetitive movements with the worker’s dominant arm. Specifically, Nguyen testified
that each of these positions “revolved around manual tasks, such as assembling and
packaging parts, setting up and adjusting equipment, operating machines and performing
welding operations on small parts. [Those] jobs exist to perform the manual tasks, and
the positions cannot be done without the manual tasks. . . . [A]n employee cannot do
these manual tasks without constant and repetitive movement of their dominant arm,
from the hand all the way to the shoulder.” 3M properly relied on Nguyen’s testimony
about the essential duties of the positions he reviewed, as he was the manufacturing
product manager in charge of the departments in which Gonzalez was qualified to work.
(See Hastings v. Department of Corrections (2003) 110 Cal.App.4th 963, 968, fn. 6
[“Absent other evidence, we may properly rely on the employer’s judgment and the
written job description to determine the essential job functions.”].)


                                             19
       Accordingly, the burden shifted to Gonzalez to produce evidence demonstrating
that there was a disputed issue as to whether modifications could have been made to the
positions reviewed by Reyes and Nguyen. (Arteaga, supra, 163 Cal.App.4th at p. 344.)
Gonzalez produced no evidence to raise a triable issue as to whether any positions
considered by Reyes and Nguyen that matched her qualifications and pay grade could
have been modified to accommodate her restrictions. Although Gonzalez did testify in
her deposition that she believed 3M could have modified the physical requirements of a
welding position by allowing her to perform welding tasks without moving her upper
right arm, this testimony was belied by her attempt to demonstrate such movements.
After Gonzalez attempted to demonstrate these movements to 3M’s counsel by trying to
hold her upper right arm motionless while she moved only her right hand, the following
exchange occurred between her and 3M’s counsel:
       “Q [3M’s Counsel]: When I saw you do the small movements that you were
saying you could do to weld, you shoulder moved; isn’t that correct?
       “A [Gonzalez]: But I can stick my arm closer to my body and not move it.
       “Q: But when you showed me that movement just right now your shoulder
moved, didn’t it?
       “A: Yes.
       “Q: So even with keeping your arm close to your body welding, you would have
had to move your shoulder repetitively; isn’t that right?
       “A: Yes.”
       Gonzalez presented no other evidence demonstrating that 3M could have modified
any of the positions reviewed by Reyes and Nguyen such that she would have been able
to perform the essential duties of those positions without having to engage in the
repetitive use of her upper right arm.
           iii.     Availability of accommodating contract positions
       Gonzalez next contends 3M failed to establish that it could not convert any of the
contract positions occupied by third-party employees into a new position that could
accommodate her medical restrictions. Gonzalez argues a triable issue was created as to

                                             20
whether 3M could have accommodated her medical restrictions by converting a contract
position into a full-time position because she testified in her deposition that she believed
she was capable of performing the essential duties of several of the assignments
performed by contract workers. This argument lacks merit.
       3M was under no legal obligation to vacate a contract position and convert it into a
full-time assignment for Gonzalez. “[A]n employer has no duty . . . to accommodate a
disabled employee by making a temporary accommodation permanent if doing so would
require the employer to create a new position just for the employee.” (Raine, supra, 135
Cal.App.4th at p. 1227.) As Nguyen testified, the contract positions identified by
Gonzalez are positions in 3M’s Monrovia plant that are filled by temporary contract
employees of a third-party company. Although some of these positions require the
contract employees to perform some tasks that are similar to those performed by 3M
employees in full-time positions, these contract positions are not designated by pay grade
(unlike 3M’s full-time positions), and they do not require the temporary employees to
perform all of the tasks required for a 3M full-time position that shares some of the same
tasks. In other words, the contract positions do not completely correspond with 3M full-
time positions in terms of duties and pay grade.
       Nevertheless, Gonzalez contends 3M was required to convert one of these contract
positions to a full-time position to allow her to maintain her 3M employee status. She is
incorrect. As noted, an employer is not required to create a new position for a disabled
employee to accommodate that employee’s needs for lighter or modified duties. (See
Raine, supra, 135 Cal.App.4th at p. 1227; see also Lui v. City and County of San
Francisco (2012) 211 Cal.App.4th 962, 982-983 (Lui) [employer has no duty to convert a
position a disabled employee would not have been eligible to fill based on employment
status into a permanent light-duty position to accommodate that employee’s medical
restrictions while allowing the employee to maintain the same pay status].) Further,
Gonzalez presented no evidence that 3M has engaged in such conduct (converting
contract positions into full-time positions for disabled employees) in the past. (See
Prilliman, supra, 53 Cal.App.4th at pp. 950-951 [“[A]n employer who knows of the

                                             21
disability of an employee has an affirmative duty to make known to the employee other
suitable job opportunities with the employer and to determine whether the employee is
interested in, and qualified for, those positions, . . . if the employer offers similar
assistance or benefit to other disabled or nondisabled employees or has a policy of
offering such assistance or benefit to any other employees.”].)
            iv.   Availability of accommodating full-time positions after
                  February 7, 2012
       Finally, Gonzalez contends 3M failed to establish that it reasonably
accommodated her disability after Dr. Steinmann reinstated her permanent and stationary
status on February 7, 2012. Specifically, she argues 3M had positions available that
could accommodate the no-overhead-use restriction that Dr. Steinmann imposed in the
February 7, 2012 status report. In making this argument, Gonzalez asserts that after Dr.
Steinmann issued the second status report, she was subject to only the no-overhead-use
restriction because Dr. Steinmann had lifted the no-repetitive-use restriction on January
5, 2012, and he never put the restriction back into effect when he issued the February 7,
2012 status report. According to Gonzalez, after February 7, 2012, she was capable of
performing any of the positions outlined in 3M’s job descriptions that matched her pay
grade and did not require her to perform tasks involving the overhead use of her right
arm. Accordingly, she claims a triable issue exists as to whether 3M could have
reasonably accommodated her no-overhead-use restriction between the time Dr.
Steinmann issued the second status report on February 7, 2012 and the time she was
terminated on August 13, 2012.
       In support of her opposition to 3M’s motion for summary judgment, Gonzalez
produced job descriptions for 14 positions at 3M’s Monrovia plant within her pay grade.
Each of those 14 positions required the assigned worker to engage in either the overhead
or repetitive use of her arms; four required only the repetitive use of the worker’s arms;
one required only the overhead use of the worker’s arms; and 9 required both the
overhead and repetitive use of the worker’s arms. Gonzalez argues, without citing to any
supporting evidence, that she could have performed the essential duties of the four

                                               22
positions requiring only the repetitive use of her arms at the time 3M terminated her
employment on August 13, 2012.6 We disagree.
       Even drawing all inferences from the evidence in Gonzalez’s favor, there is no
evidence that Gonzalez was physically capable of performing, with or without
accommodation, any position that required her to engage in the repetitive use of her right
arm. As of July 29, 2011, Dr. Steinmann had determined that Gonzalez had reached a
point of maximum medical improvement. At that time, Gonzalez complained that she
was still experiencing pain in her right arm, right shoulder, and the right side of her neck.
This complaint was consistent with Gonzalez’s status more than a year earlier, when she
was placed on medical leave in February 2010 because she could not bear the pain she
experienced in the same parts of her body despite 3M’s efforts to rotate her through
assignments that allowed her to alternate between different tasks and physical positions.
As a result of Gonzalez continuing to experience severe pain in her arm, shoulder, and
neck up through July 2011, Dr. Steinmann precluded her from engaging in work that
would require her to make repetitive movements with her upper right arm.
       There is no evidence demonstrating that, from the time Dr. Steinmann’s July 29,
2011 status report was issued until the time Gonzalez’s employment was terminated on
August 13, 2012, Gonzalez’s physical condition had improved to enable her to engage in
repetitive tasks involving her upper right arm. On September 15, 2011, Gonzalez wanted
to return to work so she requested that Dr. Steinmann lift her medical restrictions. Dr.
Steinmann refused Gonzalez’s request because her condition was permanent, and he
believed that allowing her to reengage in her prior work at 3M would exacerbate her
injuries. On January 5, 2012, Dr. Steinmann issued a report clearing Gonzalez to return


6
       Gonzalez appears to rely on her declaration testimony that she believed she could
have performed the essential functions of certain assembly-line positions at 3M.
However, as we already noted, that testimony was excluded by the trial court, and
Gonzalez does not challenge that evidentiary ruling on appeal. Accordingly, we consider
those statements to have been properly excluded by the trial court. (See Villanueva,
supra, 160 Cal.App.4th at p. 1196.)

                                             23
to work without restrictions. According to Dr. Steinmann, Gonzalez had convinced him
that she no longer experienced pain when she engaged in the type of work that she had
previously performed at 3M. However, Dr. Steinmann changed his opinion one month
later, when he issued the February 7, 2012 report. The report was issued after Gonzalez
returned to Dr. Steinmann’s office complaining that she could not work for more than
five minutes without experiencing excruciating pain. According to Dr. Steinmann, he
had been mistaken about Gonzalez’s condition when he issued the January 5, 2012 report
because he relied on her statements that she would be able to return to work without pain
despite her injuries. However, after she returned to his office in February 2012
complaining of unbearable pain, he formed the opinion that Gonzalez had become
unreliable in describing her own symptoms. Because Gonzalez continued to experience
excruciating pain in her arm and shoulder, Dr. Steinmann placed Gonzalez back at her
previous permanent and stationary status. Although Dr. Steinman did not explicitly
reinstate the no-repetitive-use restriction in the February 7, 2012 status report, there is no
indication from that report, or any other evidence outside the January 2012 reports that
Dr. Steinmann later discredited, that Gonzalez’s condition had improved since July 29,
2011 such that she could engage in the repetitive use of her right arm.
       Indeed, in issuing the February 7, 2012 status report, Dr. Steinmann stated that he
would like to amend his January 5, 2012 report and place Gonzalez at her “previous
permanent and stationary status.” Gonzalez was placed on permanent and stationary
status only one time prior to February 7, 2012, which was when Dr. Steinmann issued the
July 29, 2011 status report. Accordingly, without any independent evidence indicating
that Gonzalez’s condition had actually improved, the only reasonable inference from Dr.
Steinmann’s decision to reinstate Gonzalez’s previous status of maximum medical
improvement in February 2012 is that her condition had not changed since that previous
status was originally imposed in July 2011. (See Hanson, supra, 74 Cal.App.4th at p.
220, fn. 2 [a disability is considered permanent once the employee has reached maximum
medical improvement].)


                                              24
       Finally, Gonzalez’s own testimony established that she was subject to both the no-
repetitive-use and no-overhead-use restrictions at the time she was terminated. During
her deposition, Gonzalez testified that, after Dr. Steinmann issued his final status report
on February 7, 2012, she was subject to both the no-overhead-use and no-repetitive-use
work restrictions.7
       In light of the foregoing, we conclude that the trial court properly granted
summary adjudication in favor of 3M as to Gonzalez’s claim for failure to reasonably
accommodate under FEHA. From February 2010 until the time Gonzalez was terminated
in August 2012, 3M accommodated Gonzalez’s physical disability and medical
restrictions by allowing her to remain on medical leave for nearly two and a half years.
(See Jensen, supra, 85 Cal.App.4th at p. 263 [a finite leave of absence to allow an
employee to recover is a reasonable accommodation]; Hanson, supra, 74 Cal.App.4th at
p. 226 [an employer is not required to allow a disabled employee to remain on unpaid
leave indefinitely where there is no indication the employee will be able to perform the
essential duties of an available position with or without reasonable accommodation].)
With respect to the period between July 29, 2011 and February 7, 2012, Gonzalez
admitted that 3M reasonably accommodated her restrictions by allowing her to remain on
medical leave. With respect to the period between February 7, 2012 and August 13,
2012, the undisputed evidence demonstrates that Gonzalez’s medical condition had never
improved from the time she was first prescribed permanent medical restrictions in July
2011. Gonzalez presented no evidence demonstrating that, after Dr. Steinmann issued
the second status report on February 7, 2012, 3M had positions available that she could


7
       Gonzalez attempts to contradict this testimony and argue a triable issue exists as to
whether she was in fact capable of performing repetitive manual tasks after Dr.
Steinmann issued the February 7, 2012 report by citing to the statements in her
declaration to which the trial court sustained 3M’s objections. As already noted, we
consider those statements to have been properly excluded and not part of the evidence
from which a triable issue could be raised on summary judgment. (See Villanueva,
supra, 160 Cal.App.4th at p. 1196.)

                                             25
perform with accommodation. Accordingly, the trial court correctly found that no triable
issue exists as to whether 3M reasonably accommodated Gonzalez’s medical restrictions
before terminating her employment.
          B. Interactive Process
       Under FEHA, an employer is obligated “to engage in a timely, good faith,
interactive process with the employee . . . to determine effective reasonable
accommodations, if any, in response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability or known medical condition.”
(§ 12940, subd. (n); see also Scotch, supra, 173 Cal.App.4th at p. 1003.) Gonzalez
contends that 3M failed to establish that it participated in a good-faith interactive process
because 3M did not engage Gonzalez in a meaningful dialogue on such issues as what
positions 3M initially considered as accommodations for Gonzalez’s no-repetitive-use
restriction imposed by Dr. Steinmann in July 2011; why 3M did not convert one of its
contract positions into a full-time position for Gonzalez; and what positions, if any, 3M
had available that could accommodate Gonzalez’s no-overhead-use restriction imposed in
February 2012.
       “Where the disability, resulting limitations, and necessary reasonable
accommodations, are not open, obvious, and apparent to the employer, . . . the initial
burden rests primarily upon the employee . . . to specifically identify the disability and
resulting limitations, and to suggest the reasonable accommodations.” (Scotch, supra,
173 Cal.App.4th at p. 1013.) When an employer becomes aware of one of its employee’s
disabilities, it has “an affirmative duty to make known to the employee other suitable job
opportunities with the employer and to determine whether the employee is interested in,
and qualified for, those positions, if the employer can do so without undue hardship . . . .”
(Prilliman, supra, 53 Cal.App.4th at pp. 950-951.) An employer’s failure to engage in a
good faith interactive process gives rise to an action under FEHA separate from an
employer’s failure to reasonably accommodate an employee’s disability. (Gelfo, supra,
140 Cal.App.4th at p. 54; see also Scotch, supra, 173 Cal.App.4th at p. 1003.)


                                             26
       Where, as here, the parties have engaged in the litigation process, including
conducting discovery, to prevail on a claim for failure to engage in a good-faith
interactive process, “the employee must be able to identify an available accommodation
the interactive process should have produced . . . .” (Scotch, supra, 173 Cal.App.4th at p.
1018.) “Section 12940[, subdivision] (n), which requires proof of failure to engage in the
interactive process, is the appropriate cause of action where the employee is unable to
identify a specific, available reasonable accommodation while in the workplace and the
employer fails to engage in a good faith interactive process to help identify one, but the
employee is able to identify a specific, available reasonable accommodation through the
litigation process.”8 (Id. at pp. 1018-1019, quoting Nadaf-Rahrov, supra, 166
Cal.App.4th at p. 984.)
       Here, the trial court properly granted summary adjudication in 3M’s favor on
Gonzalez’s interactive-process claim. As we concluded above, Gonzalez admitted during
discovery that 3M reasonably accommodated her medical restrictions prior to February 7,
2012 by allowing her to remain on medical leave while the parties waited for Gonzalez to
recover or for an accommodating position to become available. Further, after initiating
litigation and engaging in discovery, Gonzalez identified no available position, or
modification to an available position, that could have accommodated her no-repetitive-
use and no-overhead use restrictions between February 7, 2012 and August 13, 2012,
when her employment was terminated. Accordingly, Gonzalez could not succeed on a
claim for failure to engage in a good-faith interactive process under section 12940,
subdivision (n). (See Scotch, supra, 173 Cal.App.4th at pp. 1018-1019.)




8
        We note that 3M’s counsel cited a nonpublished opinion in arguing that, to raise a
triable issue as to her interactive-process claim, Gonzalez was required to identify an
available position at 3M that could accommodate her disability once the parties
conducted discovery. While we ultimately agree with 3M that Gonzalez was required to
identify an available position (see Scotch, supra, 173 Cal.App.4th at p. 1018), the
nonpublished opinion should not have been cited. (See Cal. Rules of Court, rule
8.115(a).)
                                             27
          C. Disability Discrimination
       Finally, FEHA prohibits an employer from discharging an employee on the basis
of a physical disability. (§ 12940, subd. (a).) Gonzalez contends the trial court erred in
granting summary adjudication on her discrimination claim because 3M admitted that it
terminated her employment because her disability leave had expired, thereby establishing
a discriminatory intent.
       As noted above, the elements of a disability discrimination claim are: (1) the
employee suffers from a disability; (2) the employee is otherwise qualified to perform her
job; and (3) the employee was subjected to adverse employment action because of her
disability. (Arteaga, supra, 163 Cal.App.4th at pp. 344-345.) To prevail on a claim for
disability discrimination, a discharged employee must establish not only that she was
discharged because of a disability, but also that she could have performed the essential
functions of an available job with or without accommodation. (Nadaf-Rahrov, supra,
166 Cal.App.4th at p. 962.) Accordingly, FEHA does not prohibit an employer from
discharging an employee with a physical disability if the employee, because of her
physical disability, “is unable to perform . . . her essential duties even with reasonable
accommodations . . . . [Citation.]” (Lui, supra, 211 Cal.App.4th at p. 971.)
       With respect to the first element of Gonzalez’s disability discrimination claim,
neither party disputes that Gonzalez suffered from a physical disability throughout the
entire period relevant to her claim. Accordingly, the pertinent issue is whether 3M
established there was no triable issue as to whether Gonzalez could have performed the
essential functions of an available, non-promotional position. (See Nadaf-Rahrov, supra,
166 Cal.App.4th at p. 963.) 3M satisfied this burden. As we concluded above, there
were no positions available at 3M that Gonzalez could have performed with or without
accommodation for her no-overhead-use and no-repetitive-use restrictions at the time she
was terminated. Because 3M had no positions available that Gonzalez could have
performed with or without accommodation, Gonzalez cannot prevail on her disability-




                                             28
discrimination claim under FEHA. (See ibid.) Accordingly, the trial court properly
granted summary adjudication in 3M’s favor as to that claim.9


                                    DISPOSITION


      The judgment is affirmed. The parties are to bear their own costs on appeal.




                                                                WOODS, Acting P. J.


We concur:




             ZELON, J.                                          FEUER, J.*




9
        We do not separately address in detail the propriety of the trial court’s grant of
summary adjudication as to Gonzalez’s wrongful-termination claim. Gonzalez cites no
authority addressing the elements or legal standards applicable to a claim for wrongful
termination. (See Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An
appellate court is not required to examine undeveloped claims, nor to make arguments for
parties.”].) Further, she devotes no separate discussion to the merits of her wrongful
termination claim; rather, she relies entirely on her discussion of her FEHA claims to
argue that the trial court also improperly granted summary adjudication in 3M’s favor as
to her claim for wrongful termination. Because we hold the trial court properly granted
summary adjudication in 3M’s favor as to Gonzalez’s FEHA claims, we likewise hold
that the trial court properly granted summary adjudication as to her claim for wrongful
termination.
*
 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           29
