Judge: Armen Tamzarian, Case: 22STCV34344, Date: 2023-11-07 Tentative Ruling

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Case Number: 22STCV34344    Hearing Date: November 7, 2023    Dept: 52

Defendant Gallery Department LLC’s Demurrer to Second Amended Complaint

Defendant Gallery Department LLC demurs to the seventh through 10th causes of action alleged in plaintiff Jennifer Pelletier’s second amended complaint.

Disability

            Defendant argues the seventh through 10th causes of action all fail because plaintiff does not allege sufficient facts to constitute a disability under the Fair Employment and Housing Act (FEHA).

            Contrary to defendant’s assertion, plaintiff alleges sufficient facts to show she had a mental disability.  “ ‘Mental disability’ includes, but is not limited to… [h]aving any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity.”  (Gov. Code, § 12926(j)(1).)  “ ‘Major life activities’ shall be broadly construed and shall include physical, mental, and social activities and working.”  (Id., subd. (j)(1)(C).)  “ ‘[W]orking’ is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments.”  (Gov. Code, § 12926.1(c).)

Plaintiff alleges she suffered from a mental or psychological disorder or condition: severe anxiety and fear.  “Anxiety, nervousness, depression, helplessness, and panic attacks” can “meet the definition of mental disability even under the ‘substantial limitation’ standard.”  (Kailikole v. Palomar Community College District (S.D. Cal. 2019) 384 F.Supp.3d 1185, 1193, citing Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 259 (Jensen).)  She alleges that disorder or condition limited her ability to go to the office.  The second amended complaint alleges that on August 18, 2022, plaintiff told her supervisor that “she needed to work from home because she did not feel safe in the office and was having a panic attack.”  (SAC, ¶ 16.e.)  She spoke to another superior and “requested to work from home because of her severe anxiety and fear for her safety.”  (Ibid.)  Later, in a conversation with Sylvia Lewis, plaintiff “expressed the overwhelming fear and anxiety that she was feeling about working from the office.”  (¶ 16.g.) 

Defendant’s reliance on Higgins-Williams v. Sutter Medical Foundation (2015) 237 Cal.App.4th 78 (Higgins-Williams) is misplaced.  There, the Court of Appeal held, “An employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a disability under FEHA.”  (Id. at p. 84.)  Defendant argues that plaintiff’s condition is equivalent because she was anxious about and afraid of former co-worker Ross Jay Curtis. 

The relevant question is what effects the disability has on the plaintiff, not what caused the disability.  In Higgins-Williams, the employee’s doctor “diagnosed plaintiff as having adjustment disorder with anxiety, and reported plaintiff’s disabling condition as ‘ “stress[ ] when dealing with her Human Resources and her manager.” ’ ”  (237 Cal.App.4th at pp. 84-85.)  In other words, the mental or psychological condition itself only existed “when dealing with” specific people.  The Court of Appeal held that condition was merely “ ‘the inability … to work under a particular supervisor.’ ”  (Id. at p. 85.)

Here, plaintiff alleges that, because of her interactions with Curtis (before defendant fired him), she was afraid to go to the office without additional “safety precautions.”  (SAC, ¶ 17.e.)  She even “asked if she could have ADT home security installed at her home at Defendant’s expense.”  (¶ 17.a.)  Her condition was not limited to anxiety “when dealing with” Curtis.  She was continuously anxious about and afraid of Curtis, though she alleges no further interactions with him after he sent her a text message on August 18, 2022.  (SAC, ¶ 16.a.)

Plaintiff’s allegations are analogous to the facts in Jensen.  After an attempted bank robbery, a bank employee “was diagnosed as suffering from posttraumatic stress disorder, which, according to her psychiatrist, preclude[d] her from working in a bank branch.”  (Jensen, supra, 85 Cal.App.4th at p. 250.)  In analyzing whether that constituted a disability under FEHA, the court considered “how it impacted her daily life” and her present symptoms, including “anxiety, nervousness, depression, lack of confidence, a helpless feeling, a feeling of humiliation, headaches, teeth grinding, nightmares, sleeplessness, and panic attacks.”  (Id. at p. 259.) 

It was irrelevant in Jensen that the attempted bank robbers would not be present at the bank branch anymore.  What mattered was whether the employee’s mental condition or disorder “makes the achievement of [a] major life activity difficult.”  (Gov. Code, § 12926(j)(1)(B).)  Likewise, in the present case, plaintiff alleges her anxiety made it difficult for her to go to the office—so difficult that she did not, even when defendant gave her an ultimatum to come back or be fired.  (SAC, ¶ 17.h.)

Higgins-Williams is also distinguishable for another reason.  Plaintiff’s alleged anxiety is not related to “standard oversight of [her] job performance.”  (237 Cal.App.4th at p. 80.)  Curtis did not supervise plaintiff.  He allegedly sexually harassed her.  She “was afraid” of him (SAC, ¶ 11) and felt “severe anxiety and fear for her safety” (¶ 16.e).  She was not merely suffering from normal job-related stress.        

Qualified to Perform Essential Functions

            Defendant also demurs to plaintiff’s disability claims on the basis that she does not allege she was qualified to perform the essential functions of her job.  FEHA does not protect plaintiffs “who are not qualified, even with reasonable accommodation, to perform essential job duties.”  (Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1, 39 (Zamora).)  “ ‘ “Essential functions” means the fundamental job duties of the employment position the individual with a disability holds or desires.  “Essential functions” does not include the marginal functions of the position.’  [Citation.]  ‘ “Marginal functions” of an employment position are those that, if not performed, would not eliminate the need for the job or that could be readily performed by another employee or that could be performed in an alternative way.’ ”  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) 

The second amended complaint alleges sufficient facts for this element of plaintiff’s claims.  It generically alleges, “At all times, Pelletier performed her job duties in an exemplary manner.”  (SAC, ¶ 9.d.)  The second amended complaint provides little detail about plaintiff’s job or her duties.  She “began working for” Gallery Department “as a personal assistant” in 2019 (¶ 9.a), “was promoted to artistic personal assistant” in November 2021 (¶ 12.d), and finally “was promoted to Development Coordinator” in June 2022 (¶ 13.e).  The second amended complaint does, however, specifically allege what plaintiff was limited in doing: going to the office.  (SAC, ¶¶ 16-17.)  And it specifically alleges, “Particularly during the summer months, most employees within Pelletier’s department worked from home at least part time, if not full time.”  (¶ 15.c.) 

When liberally construing the operative complaint and making reasonable inferences in her favor, plaintiff’s allegations suffice to show she was qualified to perform the essential functions of her job.  Defendant did not employ her as a truck driver or a cook or some other job that necessarily cannot be done from home.  She was a “Development Coordinator,” and other coworkers “within [her] department” worked from home sometimes.  The court cannot conclude, as a matter of law, the operative complaint indicates plaintiff was incapable of “coordinating development” from her home.

Moreover, plaintiff alleges defendant permitted her to work from home beginning August 19, 2022 (SAC, ¶ 16.f), and first “threatened to force [her] to use a day of Paid Time Off” on October 10 (¶ 17.f).  Defendant’s two-month delay before firing plaintiff supports an inference that she was able to do her essential functions from home and that being in the office was only necessary for marginal functions.

Defendant’s Knowledge of Disability

In another argument common to multiple causes of action, defendant asserts plaintiff did not allege she informed defendant of her disability.  “ ‘While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts.  “Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].” ’ ”  (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1248 [discussing knowledge required for discriminatory intent].) 

The second amended complaint alleges plaintiff told defendant about her anxiety and fear, i.e. a mental or psychological condition or disorder, and how it limited major life activities including going to the office.  (SAC, ¶¶ 16.e, g.)  She was not required to explicitly say she had a “disability” or that she was diagnosed with a disorder.  “An employee is not required to specifically invoke the protections of FEHA or speak any ‘magic words’ in order to effectively request an accommodation under the statute.”  (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 598 (Soria).)  “ ‘ “The employer need only know the underlying facts, not the legal significance of those facts.” ’ ”  (Id. at p. 592.) 

As the Court of Appeal has noted, “ ‘[I]t is important to distinguish between an employer’s knowledge of an employee’s disability versus an employer’s knowledge of any limitations experienced by the employee as a result of the disability.  This distinction is important because the [law] requires employers to reasonably accommodate limitations, not disabilities.’ ”  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)  Plaintiff explicitly told defendant of her limitations: she was not willing to go to the office, at least without “increased security.”  (SAC, ¶ 17.f.)  She told defendant why: she was anxious and afraid.  Those underlying facts were enough for defendant to connect the dots between plaintiff’s request for accommodation and her psychological symptoms and conclude FEHA’s provisions on disability apply.

7th Cause of Action: Failure to Provide Reasonable Accommodation

Plaintiff alleges sufficient facts for this cause of action.  “ ‘The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.’ ”  (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.)  The court addressed the first two elements above. 

Defendant argues that continuing to permit plaintiff to work from home was not a reasonable accommodation.  “The examples of reasonable accommodations in the relevant statutes and regulations include reallocating nonessential functions or modifying how or when an employee performs an essential function, but not eliminating essential functions altogether.  FEHA does not obligate the employer to accommodate the employee by excusing him or her from the performance of essential functions.”  (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 375.)  When determining reasonable accommodations, “[e]ach inquiry is fact specific and requires a case-by-case determination.”  (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1593; accord McCullah v. Southern California Gas Co. (2000) 82 Cal.App.4th 495, 500.) 

Defendant’s argument relies on the premise that working in the office was an essential job function, which the court rejected above.  “Relevant examples of reasonable accommodations include … transferring an employee to a more accessible worksite.”  (Zamora, supra,  71 Cal.App.5th at p. 41.)  The employee’s home is the ultimate accessible worksite. 

8th Cause of Action: Failure to Engage in the Interactive Process

Plaintiff alleges sufficient facts for this cause of action.  Defendant’s demurrer to it relies on the same common arguments about plaintiff’s disability, defendant’s knowledge of the disability, and essential job functions, which the court rejected above.  Defendant makes no arguments unique to this cause of action.

9th Cause of Action: Disability Discrimination

Plaintiff alleges sufficient facts for this cause of action.  “To establish a prima facie case of mental disability discrimination under FEHA, a plaintiff must show the following elements: (1) She suffers from a mental disability; (2) she is otherwise qualified to do the job with or without reasonable accommodation; and (3) she was subjected to an adverse employment action because of the disability.”  (Higgins-Williams, supra, 237 Cal.App.4th at p. 84.)  The court addressed the first two elements above.  For the third element, plaintiff alleges the necessary ultimate fact that her “mental disability” was a “substantial motivating reason[] in defendants’ decision to terminate” her.  (SAC, ¶ 7 [sic], p. 29.) 

Defendant argues she was fired for refusing to return to work, not because of her disability.  An employer can discriminate against someone because of her disability even “even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability.”  (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 128.)  Terminating an employee for an otherwise legitimate reason can constitute disability discrimination when that reason results from the disability.  (Soria, supra, 5 Cal.App.5th at p. 595 [reversing summary judgment against employee fired for tardiness where “finder of fact could reasonably infer that at least some of the tardiness … was due to Soria’s medical appointments”].)  Plaintiff alleges her disability prevented her from coming to the office.  Firing her for not coming to the office therefore suffices to constitute subjecting her to an adverse employment action “because of” her disability.    

10th Cause of Action: Hostile Work Environment Based on Disability

Plaintiff does not allege sufficient facts for this cause of action.  “To prevail on a harassment claim under FEHA, a plaintiff must” allege she was “subjected to ‘offensive comments or other abusive conduct’ that is (1) based on” disability “and (2) ‘sufficiently severe or pervasive as to alter the conditions of [her] employment.’ ”  (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736.)  “To constitute harassment, the conduct must be so objectively severe or pervasive as ‘ “to create a hostile or abusive working environment.” ’  [Citation.]  Factors to consider in this context include the frequency of the conduct, its severity, whether it is physically threatening or humiliating, and whether it unreasonably interferes with the employee’s work performance.’ ”  (Ibid.) 

Plaintiff makes few allegations of purportedly abusive conduct based on her disability.  She alleges, “On numerous occasions while Pelletier was working from home, Lewis called her and berated her about working from home, threatening to cut her hours, and told her that she was burdening the company.”  (SAC, ¶ 16.h.)  She further alleges that on October 7, 2022, after she “refused to return to the office until she was given more details regarding increased security, … Lewis accused Pelletier of not working and threatened to force Pelletier to use a day of Paid Time Off.”  (¶ 17.f.)  Finally, she alleges, “Later that day, Lewis, again, told Pelletier that she needed to return to the office, in-person, the following day, October 12, 2022.”  (¶ 17.g.)

These allegations fail as a matter of law because Lewis’s actions constitute personnel management, not avoidable abusive conduct.  “Making a personnel decision is conduct of a type fundamentally different from the type of conduct that constitutes harassment.  Harassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.  No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc. in order to carry out the legitimate objectives of personnel management.”  (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64.)  But “[m]aking personnel decisions is an inherent and unavoidable part of the supervisory function.  Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties.”  (Ibid.)

 What plaintiff characterizes as “berat[ing] her about working from home” was her superior informing her, perhaps in a rude manner, of her personnel management decision to require plaintiff to return to the office.  “[T]he FEHA is ‘not a “civility code” and [is] not designed to rid the workplace of vulgarity.’  [Citations.]  While the FEHA prohibits harassing conduct that creates a work environment that is hostile or abusive,” it does not forbid “coarse and vulgar language or conduct that merely offends.”  (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 295.)  The same reasoning applies to “accus[ing] Pelletier of not working and threaten[ing] to force Pelletier to use a day of Paid Time Off.”  Doing so may be impolite, but it is a means of managing an employee whom the employer believes is not working.  And even if Sylvia Lewis’s communications to plaintiff did not constitute personnel management, any abuse was minimal, only tangentially based on plaintiff’s disability, and not pervasive enough to create a hostile work environment.     

Disposition

            Defendant Gallery Department LLC’s demurrer to plaintiff Jennifer Pelletier’s seventh, eighth, and ninth causes of action is overruled.  Defendant Gallery Department LLC’s demurrer to plaintiff Jennifer Pelletier’s 10th cause of action is sustained with 20 days’ leave to amend.