                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            APR 27 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

ELIZABETH STEVENSON, an                          No. 14-55749
individual,
                                                 D.C. No. 8:13-cv-00579-DOC-
              Plaintiff - Appellant,             RNB

 v.
                                                 MEMORANDUM*
ABBOTT LABORATORIES, a California
corporation; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                             Submitted April 8, 2016**
                               Pasadena, California

Before: SILVERMAN and GRABER, Circuit Judges, and DORSEY,*** District
Judge.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
          The Honorable Jennifer A. Dorsey, United States District Judge for the
District of Nevada, sitting by designation.
      Plaintiff Elizabeth Stevenson, a sales representative for Defendant Abbott

Laboratories, was injured in a car accident. Plaintiff took 10 months of medical

leave. Toward the end of the leave period Defendant replaced her with another

employee. Plaintiff did not take another position with Defendant, and her

employment ended after a year of leave. She brought this action, claiming

disability discrimination under the California Fair Employment and Housing Act

("FEHA") and alleging termination in violation of public policy. The district court

granted summary judgment to Defendant. On de novo review, Johnson v. Poway

Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011), we affirm.

      1. Defendant’s leave policy is neutral and non-discriminatory. It provides

job protection and full pay for up to 26 weeks, after which a still-disabled

employee can apply for extended disability plan benefits for another 26 weeks. If

an employee does not return to work at the end of a year of leave (of any kind), the

employee’s employment ends. Defendant followed that policy with respect to

Plaintiff, and she does not argue to the contrary. Assuming, then, that Plaintiff

made out a prima facie case of discrimination, Defendant offered a legitimate non-

discriminatory reason for its actions, and the record contains insufficient evidence

of pretext to create a genuine issue of material fact. See Yanowitz v. L’Oreal

USA, Inc., 116 P.3d 1123, 1130 (Cal. 2005) (applying three-part framework to


                                          2
FEHA discrimination claim); Raytheon Co. v. Hernandez, 540 U.S. 44, 53–54

(2003) (holding that a neutral employment policy meets the employer’s obligation

at step two). That is particularly true here, because Plaintiff had taken an earlier

six-month medical leave and had been returned to work with certain

accommodations.

      2. Defendant engaged in a timely, good faith interactive process as required

by California Government Code section 12940(n). When Plaintiff’s 26 weeks of

paid leave expired, Defendant wrote to Plaintiff providing contact information for

a leave specialist and told her that, if at any time she felt there was anything

Defendant could "do to assist with [her] return to work, please let [Defendant]

know." Plaintiff understood that, if she did not return to work by a particular date

(three months before her release to return to work), her job might no longer be

available. Additionally, periodically throughout her leave, Plaintiff and supervisor

Merdalo communicated about Plaintiff’s medical progress; Defendant even helped

her find a new doctor. Later, when Plaintiff’s unpaid leave expired, Defendant

directed Plaintiff to a job-posting board and put her in touch with the diversity

manager. After she was released to return to work, Plaintiff told Defendant that

she would not relocate for a position and would accept a job only if it were within




                                           3
easy driving distance of her home, but Defendant was unable to offer such a

position.

      3. Reasonable accommodation beyond the extended leave was not required

for two reasons. First, California courts do not require that medical leave be

indefinite or that a job be held open indefinitely for a temporarily disabled

employee. Jensen v. Wells Fargo Bank, 102 Cal. Rptr. 2d 55, 68 (Ct. App. 2000).

Here, leave was indefinite because Plaintiff’s doctors extended it repeatedly, and

until three weeks before her return Plaintiff did nothing to dispel Defendant’s

belief that she would never return to work. Second, after Plaintiff was released to

work, she was not disabled.

      4. Preventing discrimination in the workplace is a fundamental public

policy of California. City of Moorpark v. Superior Court, 959 P.2d 752, 762–63

(Cal. 1998). But because the record does not disclose discrimination, Plaintiff’s

claim for termination in violation of public policy also fails.

      AFFIRMED.




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