Bryan v. County of San Diego Sheriff's Dept. CA4/1

Opinion

Filed 9/28/26 Bryan v. County of San Diego Sheriff’s Dept. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LIZABETH OMELIA BRYAN, D086545

Plaintiff and Appellant, (Super. Ct. No. 37-2023- 00025247-CU-WT-CTL) v.

COUNTY OF SAN DIEGO SHERIFF’S DEPARTMENT,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Lizabeth Omelia Bryan, in pro. per., for Plaintiff and Appellant. Office of County Counsel, County of San Diego and Kate D. Jones, for Defendant and Respondent. I. INTRODUCTION Lizabeth Omelia Bryan (Bryan) sued the County of San Diego’s Sheriff’s Department (County) for disability discrimination in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The trial court granted summary judgment in favor of the County, finding Bryan failed to demonstrate a triable issue of material fact that the County’s legitimate non-discriminatory reason for her termination was pretextual. On appeal, Bryan contends she introduced substantial evidence of discriminatory motive. We disagree and affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

In 2015, the County hired Bryan as a Detention Processing Technician. The County granted Bryan pregnancy leave from June 2020 through October 20, 2020. Three days after her leave ended, Bryan sought further leave for postpartum depression. She included a doctor’s note “plac[ing] her off work” without explanation for about 10 days, through October 30, 2020. A. San Diego County Compensation Ordinance Under the San Diego County Compensation Ordinance (SDCCC) section 4.3.2, the County has the discretion to grant an employee unpaid leave “with the right to return” when a doctor certifies the employee is “unable to perform the duties of the employee’s position.” The leave may be granted for the duration of the disability but not to exceed one year. If the employee is unable to return at the end of the year, the County may grant unpaid leave “without the right to return” for the duration of the disability but not beyond one year. An employee granted leave with the right to return is entitled to “return to the same class in the same department as was 2 occupied at the commencement of the leave,” while an employee granted leave without a right to return has no such entitlement. Under SDCCC section 14.2.2, an employee absence without authorized leave for three consecutive days automatically terminates the employment. Likewise, under section 14.2.3, an employee who fails to report for duty within three calendar days after expiration of authorized leave is automatically separated from service. The County has discretion to cancel an automatic termination if the “circumstances warrant” it. Only employees on leave with right to return may make a written request for reinstatement with the Civil Service Commission if the County refuses to reinstate the employee after an automatic separation. B. October 2020 to May 3, 2021: County Grants Bryan Disability Leave With Right to Return Upon receipt of Bryan’s request for additional medical leave, the County granted her unpaid leave “with right to return” through October 30, 2020.1 When Bryan did not return to work for over two months without further communication, human resources officer Michele King contacted her in mid-January 2021. In a phone conversation, King reminded Bryan to keep in contact with human resources every 45 days or sooner. That same day, 1 On October 23, 2020, Bryan presented a note from her nurse practitioner placing her on medical leave until October 30, 2020. Both parties refer to this as a “doctor’s” note. The County appeared to honor that letter.

3 Bryan submitted five separate doctors’ notes “plac[ing] her off” work retroactively and prospectively through January 25, 2021.2 On January 20, 2021, because of her failure to follow proper leave request procedures, the County sent Bryan a letter stating her expected return date of January 26, 2021, and directing Bryan to make additional leave requests in writing “five days prior to” that date. Despite this directive, Bryan did not return to work on January 26, 2021, or submit a new doctor’s note before the expiration of her leave. Instead, a month later, Bryan submitted a doctor’s letter “requesting a medical leave of absence” retroactively from February 3 and prospectively through May 3, 2021. The letter was not on letterhead and did not address whether Bryan was unable to work. King spoke to Bryan that same day, apparently indicating the request for leave with right to return through May 3, 2021, would be granted and re- iterating that any further requests for leave would need to be submitted before Bryan’s return date. But to process the leave request, the County in the following weeks also sought proper documentation, including a doctor’s note on letterhead indicating Bryan was unable to work and a completed 2 Each of these notes, like Bryan’s first note in October 2020, stated, “patient is placed off work” but did not expressly state, as required by SDCCC section 4.3.2, that Bryan was unable to perform her job duties due to her disability.

4 Essential Job Functions (EJF) checklist.3 During this time, Bryan did not submit a corrected letter or the EJF form.

C. June 2021 to October 2021: County Deems Bryan’s Leave Unapproved After several messages from King during the spring of 2021, in mid- June 2021, Bryan submitted a new doctor’s note stating, “she will benefit from abstinence from work” for a period of three months, from May 4, 2021, to August 4, 2021. Because the letter failed to indicate whether Bryan was unable to work, senior human resources officer Linda Murphy sent Bryan an email and certified letter stating the County needed more information “to properly address and approve your Leave of Absence request.” Murphy asked Bryan’s doctor to complete an EJF form and return it within 10 days. The message indicated Bryan was currently “NOT approved for a Leave of Absence[.]” Bryan submitted the EJF form around July 1, 2021. Bryan maintained that neither she nor her doctor understood the EJF. Consequently, her doctor completed it as if she could perform all her duties.4 Upon submission, Bryan was told to come to work. But, when Bryan spoke to Murphy, Murphy told her that to grant Bryan’s request the County needed a doctor to certify 3 According to senior human resources officer Linda Murphy, the EJF form is provided for two reasons to all employees who request disability leave. First, so a doctor can certify to the county that the employee is unable to perform her or his job duties. Second, so the county will have information from doctors about what disability accommodations the returning employee will require at work.

4 A Physician’s Assistant, not a physician, signed the form. The record remains unclear about who checked the boxes on the EJF.

5 Bryan was unable to perform her job duties. Murphy clarified the purpose of the form and asked Bryan to have her doctor complete a new EJF checklist. Murphy emailed Bryan two more times during the summer of 2021 to obtain required documentation, reminding Bryan her prior doctor’s letter expired on August 5th and asking Bryan for an updated note. Bryan responded on August 17, 2021, stating she submitted an updated doctor’s letter to her union representative, Adriana Meza. Meza submitted the new note to the County on September 7, 2021, which “request[ed] Bryan ‘be off from work for a period of 3 month[s],’ ” through November 4, 2021. Upon receipt, Murphy emailed Bryan and Meza and told them that the note, as worded, was insufficient to grant the leave request because it “simply request[ed]” Bryan be off work. Murphy again directed that more information was necessary to “address and approve” the leave request, to include a statement certifying Bryan was unable to perform her job duties. Murphy asked that Bryan have her doctor complete an EJF form and told Bryan she was currently “NOT approve[d] for a Leave of Absence[.]” In early October 2021, Meza emailed an updated doctor’s note to Murphy indicating Bryan is to “be off from work” with an anticipated return date of November 5, 2021, and inquired what type of leave Bryan was currently on. Murphy responded that Bryan was on unapproved leave with right to return and again clarified the type of information the County needed to process the request. Bryan’s eligibility for leave with right to return, however, expired on October 21, 2021; currently, Bryan was eligible for leave without right to return for one year.

6 D. November 2021 to May 5, 2022: County Approves Bryan for Leave Without Right To Return In early November 2021, Meza submitted a doctor’s letter certifying Bryan was unable to perform her job duties from November 5, 2021 through February 5, 2022. The County approved the request, and Bryan was put on approved leave without the right to return. Bryan, however, did not return to work on February 6, 2022, nor did she submit a timely note before her leave expired. Sandra Rivera, another human resource officer, emailed Bryan and Meza on February 18, 2022, requesting Bryan to submit a new doctor’s letter within 10 days if she wanted continued leave. The email indicated that failure to timely provide medical certification could “lead to a disciplinary action, up to and including termination.”5 Several days later, Meza submitted a doctor’s note dated January 28, 2022, which stated Bryan “is currently unable to perform all job duties,” “she will benefit from continued abstinence from work,” and sought leave for a three month period through May 4, 2022, returning to work on May 5. Rivera responded the same day seeking clarification, because the letter did not clearly state Bryan had to be “off work” and a three month period from the date of the letter was April 27, 2022. A few days later, Bryan submitted another letter which included “Due to her condition, [Bryan] is unable to work for a period of 3 months, with anticipated return to work on 5/5/2022.” (Italics added.)

5 When Rivera sent the email, she mistakenly believed that Bryan’s last doctor’s note expired November 5, 2021, but was later informed Bryan’s leave had been extended through February 5, 2022.

7 In early March 2022, Rivera informed Bryan that the County had approved her leave without right to return until May 4, 2022. Rivera also directed Bryan to provide an updated doctor’s letter at least one week before her leave expired—April 27, 2022—if she sought additional leave. She again warned Bryan that failure to timely submit such certification could result in termination. Bryan did not submit a new doctor’s note before the deadline expired. On April 29, 2022, Rivera sent Bryan an email and certified letter indicating Bryan was expected to return to work on May 5, 2022, at the Las Colinas Detention Facility for the 10:00 p.m. to 6:30 a.m. shift. The letter cautioned that if Bryan failed to return on that date, she would be “deemed absent without approved leave” and her employment could be terminated. Rivera sent Bryan an amended letter on May 2, 2022, restating that information, but changing the work location to San Diego Central Jail. E. Bryan is Automatically Separated From Employment On May 5, 2022, Bryan sent Rivera an email informing the County, “My doctor is going to be sending me a [sic] updated work note, I will forward it to you as soon as I receive.” Bryan did not report to work on May 5th, 6th, 7th, or 9th. She submitted the new doctor’s note on May 12th, indicating she should be off work through August 5, 2022. Around the same time, Bryan received an email and letter from the County informing her she was automatically separated from her employment under SDCCC section 14.2.3 due to her failure to report within three calendar days after expiration of her authorized leave. Meza contacted the County to inform them that Bryan had submitted a new doctor’s note and had contacted the County on May 5th. The County, however, did not rescind the separation.

8 F. Litigation Bryan filed a complaint against the County alleging, amongst other claims, disability discrimination in violation of Government Code, section 12940, subdivision (a) of the FEHA.6 Bryan contended that the County terminated her employment because she had requested an extension of leave for her pregnancy-related disability. The County moved for summary judgment, highlighting that in terminating Bryan’s employment it had followed policies that applied equally to all employees. The County asserted, even assuming Bryan had made a prima facie case, summary judgment was proper because it had presented evidence of a legitimate, non-discriminatory reason for its employment decisions and Bryan had failed to rebut this showing. Bryan countered that a triable issue of fact existed whether the County’s alleged legitimate reason for her termination was pretextual. She argued she had proffered evidence that would allow a reasonable jury to conclude the County was “looking for a way to get rid of [her],” given that the County was on notice Bryan was not abandoning her position, had “nitpick[ed]” her doctor’s notes, and did not make any attempt to contact Bryan between May 5th and her termination.

6 Bryan’s amended complaint included six additional claims alleging violations of the FEHA, including (1) gender discrimination, (2) harassment, (3) failure to provide accommodations, (4) failure to engage in interactive process, (5) retaliation, and (6) failure to prevent discrimination, harassment, and/or retaliation. Because Bryan’s brief on appeal only addresses disability discrimination, she has forfeited any issues related to these other claims. (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1511.)

9 At the motion hearing, the trial court ruled in favor of the County, reasoning that there was no triable issue that Bryan’s termination was “based on a legitimate, nondiscriminatory reason.” The court entered a judgment granting the County’s motion.

III. DISCUSSION

A. Standard of Review “[S]ummary judgment is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.” (Perry v. City of San Diego (2021) 65 Cal.App.5th 172, 177 (Perry).) “[A] triable issue of material fact [exists] 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.) “A defendant ‘moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.’ [Citation.] A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. [Citation.] If the defendant’s prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense.” (Perry, supra, 65 Cal.App.5th at pp. 177–178.) We review a summary judgment de novo, applying the same standard as the trial court. (Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 999.) We consider “ ‘all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports.’ [Citation.] ‘ “We liberally construe the 10 evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” [Citation.]’ ” (Padron v. Osoy (2025) 110 Cal.App.5th 677, 689.) B. Legal Principles “FEHA declares it unlawful for “an employer, because of . . . physical disability, mental disability, [or] medical condition . . . 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).) The FEHA accordingly proscribes “discrimination arising from an employer’s intentionally discriminatory act against an employee because of his or her disability.” (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 30 (Zamora).) For purposes of evaluating disability discrimination claims based on circumstantial evidence, as in this case, California courts have adopted the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. (Hodges v. Cedars-Sinai Medical Center (2023) 91 Cal.App.5th 894, 904.) This framework, originally developed for use at trial, generally requires: (1) the plaintiff to establish a prima facie case of disability discrimination; (2) if the plaintiff does so, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action; and (3) if the employer shows a legitimate reason, then the plaintiff has the burden of demonstrating by a preponderance of the evidence that the reason was pretextual or untrue. (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 343 (Arteaga).) This analytical structure is altered when applied in the context of summary judgment. “The ‘employer, as the moving party, has the initial burden to present admissible evidence showing either that one or more 11 elements of plaintiff’s prima facie case is lacking or that the adverse employment action was based upon legitimate, nondiscriminatory factors.’ [Citations.] If the employer satisfies its initial burden, it ‘ “ ‘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.’ ” ’ ” (Zamora, supra, 71 Cal.App.5th at p. 32, italics omitted.) We focus on pretext because Bryan’s argument on appeal relates solely to whether she introduced evidence creating a triable issue on this point. Generally, “pretext may be demonstrated by showing ‘ “the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge.” ’ ” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 594.) That an employer’s proposed legitimate reason for the adverse decision was wrong, mistaken, or unwise is not sufficient to demonstrate pretext. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) “Rather, the [employee] must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ [citation], and hence infer ‘that the employer did not act for [the asserted] non-discriminatory reasons.’ (Ibid.) Evidence of pretext must relate to the motivation of decision makers, as to prove “an actual causal link between prohibited motivation and termination.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433–434 (King).) C. Analysis Bryan does not dispute that the County proffered a legitimate, nondiscriminatory reason for her termination: Bryan violated SDCCC 12 section 14.2.3, justifying her termination. Instead, to defeat the County’s motion she contends she presented substantial evidence that the County’s reason was pretextual. Bryan details a plethora of evidence to support she was fired because of her postpartum depression. But, viewing the record most favorably to Bryan, it is evident she failed to offer evidence that would allow a rational jury to infer that the County’s proffered reason was unworthy of credence.7 Bryan, for example, asserts a reasonable jury could find a discriminatory motive because the County had agreed she was entitled to leave without a right to return through October 2022, but then arbitrarily reversed itself. This assertion is without factual support in the record. Under SDCCC section 14.2.3, there is no dispute that Bryan was merely eligible for such leave through October 2022. The County, however, had only approved her leave through May 4, 2022. Her eligibility for leave through October 2022 has no bearing on the veracity of the County’s stated reason for Bryan’s termination.8 Bryan next intimates that the County manipulated its rules in a manner that made it difficult for her to comply in order to manufacture 7 We assume for purposes of our analysis only, that Bryan presented substantial evidence to establish a prima facie case of discrimination.

8 Bryan makes a related argument that the County’s reason—violation of section 14.2.3—is factually baseless because that section did not apply to her. She argues because she submitted a doctor’s note extending her leave to August 5, 2022, she could not be terminated for failure to report. It is undisputed, however, that the County did not extend her leave beyond May 4, 2022. And, even if the County made a mistake, mistake alone does not demonstrate discriminatory motive. (Hersant, supra, 57 Cal.App.4th at p. 1005.)

13 grounds for termination and mask its true discriminatory motive. Bryan chronicles the evidence in support, including the County’s: “inconsistent, arbitrary, and burdensome requirements to extend” her leave; “misuse” of the EJF checklist to challenge her need for leave; “nitpicking” the adequacy of her doctor’s notes; and “arbitrary” calculation of leave periods. She further claims discriminatory motive can be inferred from a mistake in Rivera’s February 2022 email and confusion on how her absence was evaluated stemming from Rivera’s April 29, 2022, letter. It is true the County set somewhat shifting expectations and provided Bryan inconsistent directions to process her leave requests. When Bryan’s disability leave initially expired in October 2020, and the County contacted Bryan in January 2021, the County accepted retroactive doctor’s notes, which simply stated “patient is placed off work” without the required reference to whether Bryan was able to work. Later in February and June 2021, when Bryan submitted notes alternately “requesting” a medical leave of absence and saying “she will benefit from [an] abstinence,” the County sought doctor’s notes that would reflect “she was unable to work.” Later still, in February 2022, when Bryan submitted a note stating she “will benefit from continued abstinence from work,” the County sought a note clarifying whether Bryan is “being ‘Placed off work’ due to medical reasons.” The County also accepted notes that calculated the leave period retroactively from the last date of leave, but in February 2022 suggested the leave period was to be calculated based on the date of the letter. Similarly, while the County consistently sought notes before leave expired, the due dates the County imposed for submission varied. In 2021, the County required Bryan to submit a note five days before leave ended, but also indicated submission a day before leave expired would suffice. Over a 14 year later, in 2022, the County indicated the note had to be submitted seven days before leave expiration. And, as Bryan highlights, the County did not consistently require submission of the EJF checklist or immediately clarify the EJF’s purpose. While Murphy attested that the checklist was provided to all employees requesting disability leave, the County did not ask Bryan to complete it at the outset of her time off from work. Further, when Bryan’s doctor filled out the EJF form incorrectly, she was initially told to come to work. Yet, the foregoing evidence does not support Bryan’s charge that the County’s human resources personnel conspired to cover up a discriminatory motive and terminated Bryan because of her postpartum depression. During the 18 months of Bryan’s leave, the County’s personnel regularly relaxed strict application of its Ordinance and other informal rules in Bryan’s favor. The County informed Bryan repeatedly from January 2021 that she must submit doctor’s notes before expiration of her leave and the note must state, with minor variances in wording, she is unable to work. Despite its direction, the County showed lenience. It consistently reached out to Bryan to obtain documentation, regardless of its instruction that she stay in contact with human resources every 45 days. It also regularly accepted late and noncompliant notes and declined to apply SDCCC section 14.2.2, which would have allowed it to terminate Bryan when she remained on an unexcused leave of absence for at least six months. As Bryan continually failed to comply with its requirements for processing leave, the County, 15 months into her leave, began to warn Bryan that her failure could result in disciplinary action, including termination. When Bryan again failed to submit a doctor’s note seven days before her leave ended on May 4, 2022, the County sent her a letter reminding her of 15 her obligation to return to work and that failure to do so could result in her separation from county service. Bryan was ultimately terminated in May 2022 after failing to submit a note before the end of her leave expired (a requirement Bryan undisputedly knew of) and not reporting to work within three days after expiration of leave in violation of SDCCC section 14.2.3. Overall, the County’s actions reflect a concerted effort to help Bryan obtain the leave she needed by giving her ample opportunities to comply. From this course of events, there is no room for a logical inference that the County terminated her because of her disability. We recognize that somewhat inconsistent directions may have been less than ideal for an employee suffering from postpartum depression, like Bryan. Indeed, the County’s actions may have unintentionally sent mixed messages regarding the consequences of failing to comply with its directives. But such circumstances do not—without more—show that illegal discrimination motivated Bryan’s termination. (Cf. Hersant, 57 Cal.App.4th at p. 1005 [simply showing that the employer’s reason was wrong does not support inference of discrimination].) While inconsistencies in an employer’s reason for termination can support an inference of pretext—and there is no such evidence here—an employer can shift its rules or standards so long as the change is not motivated by a discriminatory reason. (Arteaga, supra, 163 Cal.App.4th at p. 344 [FEHA does “not guarantee employees a stress-free working environment” and employer can interpret its rules as it chooses, so long as the action is not discriminatory].) The foregoing evidence lacks the causal link between a discriminatory motive and Bryan’s termination. Such a connection is necessary to demonstrate the County did not honestly believe in its reason for terminating Bryan’s employment. (See King, supra, 152 Cal.App.4th at p. 433.)

16 Bryan’s remaining evidence of supposed pretext similarly fails. She argues an inference can be made that her postpartum depression was the true reason for her termination because (1) the County waited until she was on leave without the right to return to terminate her, at which point she had no right to challenge the separation, and (2) the County assigned her to the nightshift allegedly knowing it would be undesirable to her.9 Yet, there is no logical connection between this evidence and the County’s reason for termination. Bryan’s speculative beliefs are insufficient to create a genuine issue of material fact. (Ibid.)10 9 Bryan also references as indicative of pretext the fact that the County initially assigned her to the Las Colinas location. However, as Bryan admits, the County reversed that decision before her start date.

10 Bryan has forfeited her claim that the County violated its notice and process requirements because she did not raise it before the trial court and has not sufficiently developed the argument on appeal. (See Magallanes v. Doctors Medical Center of Modesto (2022) 80 Cal.App.5th 914, 924 [“[P]ossible theories that were not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal.”]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [undeveloped arguments are forfeited].)

17 IV. DISPOSITION The order granting the County summary judgment is affirmed. The parties are to bear their own costs on appeal.

RUBIN, J.

WE CONCUR:

DO, Acting P. J.

BERMÚDEZ, J.