Kheloud Allos worked for Poway Unified School District from 2002 until her 2023 retirement. In 2006, she became a Senior Business Systems Analyst. In March 2020, the District allowed employees to work remotely due to the COVID-19 pandemic. When in-person work resumed, Allos submitted multiple doctor’s notes requesting full-time remote work, citing risks due to her age (65), high blood pressure, obesity, and a prior reaction to the Tdap vaccine. She also expressed concern for her elderly mother, whom she cared for.
Beginning in October 2020, the District conducted a series of disability interactive process meetings with Allos. The District granted Allos temporary accommodations, including partial remote work and use of a private office. The District and Allos had six meetings from 2020 to 2022, during which Allos accepted and rejected various in-person and remote hybrid work arrangements. The District consistently maintained that it lacked a remote work policy and aimed to return Allos to full-time in-person work.
In July 2022, the District and Allos agreed to increase her in-office time to 25 hours a week, and she could either work in office the remaining 15 hours or take vacation time. In addition, Allos would transition to full time in-office work on January 3, 2023. If she failed to do so, the District would place Allos on administrative leave. On February 21, 2023, Allos submitted her intent to retire effective June 5, 2023.
On March 15, 2022, Allos filed a civil complaint against the District asserting violations of the Fair Employment and Housing Act (FEHA) and violations of the California Labor Code. Her FEHA claims included disability discrimination, failure to provide reasonable accommodation, failure to engage in the interactive process, associational discrimination, and retaliation. She also alleged violations of Labor Code sections 6400 and 6401, which require employers to provide and maintain a safe and healthful workplace; section 6310, which prohibits retaliation for reporting unsafe conditions; and section 1102.5, which protects whistleblowers from retaliation for disclosing suspected legal violations.
The District moved for summary judgment, arguing: (1) public health immunity under Government Code section 855.4 barred all of Allos’s claims; (2) Allos failed to establish she had a qualifying disability under FEHA; and (3) she had not suffered an adverse employment action. Government Code section 855.4 immunizes public entities from liability for injuries caused by their discretionary decisions to prevent or control disease in the interest of public health. The District supported its motion with deposition transcripts, records of interactive meetings, and a physician’s declaration concluding that Allos had no vaccine allergy or contraindication.
Allos opposed the motion, asserting she had multiple disabilities and that her requests for remote work were reasonable accommodations. She did not address the District’s immunity defense under section 855.4.
The trial court granted summary judgment for the District. It held that section 855.4 barred the claims and alternatively found Allos failed to raise triable issues of fact on disability, adverse action, or failure to accommodate. Allos appealed.
The court of appeal first addressed the Districts argument that it had public health immunity under Government Code section 855.4. The court of appeal held that the District’s decisions to first allow remote work and later require in-person attendance, along with its handling of vaccine-related accommodation requests, were discretionary public health measures protected by section 855.4 immunity. The court of appeal rejected Allos’s argument that this immunity conflicted with FEHA and the Labor Code. It found she had waived most challenges to the statute by failing to raise them in her opposition brief, and that her appellate arguments lacked legal and factual support.
The court of appeal next found Allos had not shown she was physically disabled under FEHA. Her claims of allergies, high blood pressure, and obesity lacked medical substantiation of a functional limitation. Her avoidance of the COVID-19 vaccine was based on personal fear, not an established medical condition. The record showed no contraindication, and the District’s expert confirmed she could safely receive the vaccine.
The court of appeal also rejected Allos’s argument that the District “regarded” her as disabled. The court of appeal explained that merely holding interactive meetings in response to an accommodation requests did not amount to an admission of disability. Because Allos was not disabled under FEHA, the District was not obligated to accommodate her.
The court of appeal rejected Allos’s associational discrimination claim related to her mother’s disability. The District had offered her leave options and did not take any adverse action. Her retirement was voluntary, and no evidence suggested the District forced her out of employment.
The court of appeal found no evidence that the District retaliated against Allos or violated the Labor Code. The court of appeal found Allos was not disciplined, demoted, or terminated, and rejected her claim that she was constructively discharged. The court of appeal also rejected Allos’s whistleblower claim under Labor Code section 1102.5 for lack of evidence.
The court of appeal affirmed the trial court’s judgment in favor of the District and awarded the District costs on appeal.
Allos v. Poway Unified School Dist. ___Cal.App.5th___ .