Judge: Barbara M. Scheper, Case: 22STCV23069, Date: 2023-02-02 Tentative Ruling
Case Number: 22STCV23069 Hearing Date: February 2, 2023 Dept: 30
Dept. 30
Calendar No.
Carlos vs. Quest
Diagnostics Clinical Laboratories, Inc., et. al., Case No. 22STCV23069
Tentative Ruling
re: Defendants’ Demurrer to First
Amended Complaint
Defendants
Quest Diagnostics Clinical Laboratories, Inc., and Jose Cuenco (collectively,
Defendants) demur to the First Amended Complaint (FAC) of Plaintiff Lorena
Carlos (Plaintiff). The Court sustains the demurrer
as to the first, fourth, fifth, and sixth causes of action with ten (10) days
leave to amend. The demurrer is overruled as to the second and third causes of
action.
In reviewing the legal sufficiency of a complaint against a
demurrer, a court will treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions, or conclusions of law. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); C & H Foods Co.
v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled
that a “demurrer lies only for defects appearing on the face of the
complaint[.]” (Stevens v. Superior Court (1999) 75 Cal.App.4th 594,
601.) “The rules by which the sufficiency of a complaint is tested against a
general demurrer are well settled. We not only treat the demurrer as admitting
all material facts properly pleaded, but also give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” (Guclimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes
omitted).) For purposes of ruling on a demurrer, the complaint must be
construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner
v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
When ruling on a demurrer, the Court may only consider the
complaint’s allegations or matters which may be judicially noticed. (Blank,
supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic
evidence or judge the credibility of the allegations plead or the difficulty a
plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson
(1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the
complaint, liberally construed, fails to state facts sufficient to constitute
any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574,
578.)
Plaintiff was employed by Defendant Quest Diagnostics Clinical
Laboratories, Inc. (Quest) beginning in 2019 as a phlebotomist. (FAC ¶ 5.) In
addition to her duties as a phlebotomist, Plaintiff was required to perform
clerical duties at a desk. (FAC ¶ 6.)
Plaintiff
suffers from a preexisting neck injury that became exacerbated sometime in
2020, resulting in pain and discomfort to her neck and lower back that
significantly impaired Plaintiff’s ability to perform both her phlebotomist and
clerical duties. (FAC ¶ 6.) Plaintiff alleges that she “continually brought her
neck and back problems, as well as how those injuries impaired her ability to
perform her essential, assigned job functions, to the attention of her
supervisor, Defendant [Jose Cuenco], as well as to management, whereby she had
requested accommodations of an ergonomic chair and desk.” (FAC ¶ 7.) Plaintiff
was eventually provided a new chair and desk, but they were insufficient to
alleviate her neck and back problems. Plaintiff continually notified Quest
management and Cuenco that the new chair and desk were inadequate. (FAC ¶ 7.)
Plaintiff also alleges that she and
her co-workers were continually subjected to verbal and physical abuse by
patients, and that her requests to Defendants for assistance were rebuffed or
ignored. (FAC ¶ 11.) Plaintiff experienced panic attacks as a result of the
abuse, for which she sought medical attention. Plaintiff notified Defendants of
her panic attacks and her treatment for them. (FAC ¶ 11.)
In addition, during her employment
with Quest, Plaintiff notified Quest’s management and Cuenco of “certain
practices that she reasonably perceived were fraudulent on the part of [Quest],
which included submitting improper insurance charges for glucose drinks that
were not actually provided by [Quest] to its patients.” (FAC ¶ 13.) Plaintiff
also complained to Defendants about the failure to provide required meal and
rest breaks. (FAC ¶ 13.)
Plaintiff was terminated on May 23, 2022, after she failed
to renew her phlebotomist’s license. (FAC ¶ 14.) Plaintiff alleges that her
termination was pretextual and was motivated by her disability, her needs and
requests for accommodation, and her reports to Cuenco and management regarding
abusive patients, fraudulent billing practices, and failure to provide meal and
rest breaks. (FAC ¶ 14.) The FAC asserts six causes of action
against Quest under FEHA and the Labor Code based on disability discrimination
and retaliation. Only the sixth cause of action, for whistleblower retaliation
under Labor Code § 1102.5, is pled against Cuenco.
First
Cause of Action for Disability Discrimination
To survive demurrer, a plaintiff alleging a discrimination claim
under FEHA “[m]ust plead the prima facie elements of employment discrimination
specified in McDonnell Douglas [411 U.S. 792].” (Caldwell v. Paramount Unified School
Dist. (1995) 41 Cal.App.4th 189, 203 fn 7.) That is, the complaint must
allege “that: (1) Plaintiff suffers from a disability; (2) Plaintiff is
otherwise qualified to do his job; and (3) Plaintiff was subjected to an
adverse employment action because of his disability.” (Alejandro v. ST Micro Electronics, Inc (N.D. Cal. 2015) 129 F.Supp.3d 898, 907.) “FEHA proscribes
two types of disability
discrimination:
(1) discrimination
arising from an employer's intentionally discriminatory act against an employee
because of his or her disability
(disparate treatment discrimination),
and (2) discrimination
resulting from an employer's facially neutral practice or policy that has a
disproportionate effect on employees suffering from a disability (disparate impact discrimination).”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1003.)
FEHA defines a physical disability as “any
physiological disease, disorder, condition, cosmetic disfigurement, or
anatomical loss that does both of the following: [¶] (A) Affects one or more of
the following body systems: neurological, immunological, musculoskeletal,
special sense organs, respiratory, . . . . [¶] (B) Limits a major life
activity. . . . A [condition] limits a major life activity if it makes the
achievement of the major life activity difficult. . . . ‘Major life activities’
shall be broadly construed and includes physical, mental, and social activities
and working.” (Gov. Code § 12926, subd. (m)(1).)
Plaintiff has sufficiently alleged that she suffers from a
physical disability as defined under FEHA, her exacerbated neck and low back
injury that “significantly impaired Plaintiff’s ability to perform her
essential assigned job functions (Phlebotomist duties and clerical duties)...”
(FAC ¶ 6.) Plaintiff sought accommodation for her disability but did not
receive any in accordance with her requests. (FAC ¶ 7.) Plaintiff alleges that,
“[d]espite her disabling medical condition and lack of accommodation, Plaintiff
had continued to perform her essential job duties to the best of her ability.”
(FAC ¶ 10.) These allegations are sufficient to show, for purposes of pleading,
that Plaintiff was otherwise qualified to do her job. (See Sanchez v.
Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1340–1341 [“appellant alleged
that had she been granted additional leave until childbirth, she would have
been able to perform the essential functions of her job with little or no
further accommodations. For pleading purposes, this allegation disposed of any
contrary inference that she was ‘unable to perform ... her essential duties
even with reasonable accommodations’ ”].) Finally, Plaintiff’s allegations that
her termination was partly motivated by her disability and accommodation
requests suffice to plead the third element of her prima facie claim. (FAC ¶
11.)
Defendants
demur to all five causes of action under FEHA on the basis that Plaintiff has
failed to allege that she needed an accommodation to perform her phlebotomist
duties. Defendants fail to specify which of Plaintiff’s claims this argument is
meant to address, and in any case, the argument is misplaced. First, Plaintiff
has alleged that her neck and low back injury impaired her ability to perform
her phlebotomist duties. (FAC ¶ 6.) Regardless, Plaintiff’s failure to plead
that she needed accommodation for her phlebotomist duties would not be fatal to
any of her claims. For purposes of Plaintiff’s first cause of action, that fact
is not necessary to establish either Plaintiff’s status as disabled or
Plaintiff’s qualification for the position.
Defendants argue that Plaintiff’s clerical duties were not
“essential functions” of her position. However, “[b]ecause the determination of
essential job functions is a ‘highly fact-specific inquiry,’ it is usually an
issue of fact for the jury to decide.” (Price v. Victor Valley Union High
School District (2022) 85 Cal.App.5th 231, 242.) Plaintiff’s allegations
that her clerical duties were essential duties of her position are accepted as
true for purposes of demurrer. (FAC ¶ 6.)
Defendants
argue that Plaintiff has failed to allege a causal link between her disability
and accommodation requests and her termination. To plead this element,
Plaintiff must allege “facts from which discriminatory intent [can] be
inferred.” (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th
1092, 1107.)
Plaintiff has failed to allege any
facts suggesting that her termination was substantially motivated by her
disability. Plaintiff only alleges that Defendants were aware of her disability
and did not properly accommodate her. (FAC ¶ 7.) Plaintiff appears to conflate
the causal requirement for her disability discrimination claim with the causal
requirement for her retaliation claim; Plaintiff’s allegations that she
continually made requests for accommodation are relevant to her remaining
claims, but the allegation that she was terminated based on those requests does
not support her cause of action under Gov. Code § 12940, subd. (a). (C.f. Brown
v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1107
[“the commission of one specific prohibited employment practice does not, in
and of itself, constitute commission of all other prohibited employment
practices”].)
Accordingly, the demurrer is sustained as to the first
cause of action.
Second Cause of Action
for Failure to Provide Reasonable Accommodation (FEHA); Third Cause of
Action for Failure to Engage in the Interactive Process (FEHA)
FEHA requires employers to reasonably accommodate an
employee's disability unless doing so would impose an undue hardship on the
employer. (Gov. Code § 12940, subd. (m).) To establish this claim, Plaintiff must plead
“(1) she has a disability covered by FEHA; (2) she can perform the essential
functions of the position; and (3) [employer] failed reasonably to accommodate her
disability.” (Brown v. Los Angeles Unified School District (2021) 60
Cal.App.5th 1092, 1107.)
The employer also must “engage in a timely, good faith,
interactive process with the employee ... to determine effective reasonable
accommodations.” (Gov. Code § 12940, subd. (n).) “Two principles
underlie a cause of action for failure to provide a reasonable accommodation.
First, the employee must request an accommodation. [Citation.] Second, the
parties must engage in an interactive process regarding the requested
accommodation and, if the process fails, responsibility for the failure rests
with the party who failed to participate in good faith.” (Price v. Victor
Valley Union High School District (2022) 85 Cal.App.5th 231, 246.)
As discussed above, Plaintiff has sufficiently alleged that
she has a disability covered by FEHA and that she can perform the essential
functions of her position. Plaintiff also alleges that she sought reasonable
accommodation for her neck and back problems, and that Quest failed to properly
accommodate her injury, though Plaintiff “continually notified CUENCO and
QUEST’s management that the chair and desk provided were insufficient and
unsuitable for alleviating her neck and back problems.” (FAC ¶ 7.) These
allegations are sufficient to state Plaintiff’s second and third causes of
action.
Fourth Cause of Action
for Failure to Prevent Discrimination (FEHA)
Under Gov. Code, § 12940, subd. (k), it is an unlawful
employment practice “For an employer, labor organization, employment agency,
apprenticeship training program, or any training program leading to employment,
to fail to take all reasonable steps necessary to prevent discrimination and
harassment from occurring.”
Because the
demurrer is sustained as to the first cause of action for disability
discrimination, Plaintiff’s claim for failure to prevent discrimination
necessarily fails. (Trujillo
v. North County Transit District, 63 Cal.App.4th 280, 288–289 [“[T]here's
no logic that says an employee who has not been discriminated against can sue
an employer for not preventing discrimination that didn't happen, for not
having a policy to prevent discrimination when no discrimination occurred”].)
Fifth
Cause of Action for Retaliation (FEHA)
“The
elements of a claim for retaliation in violation of Government Code section
12940, subdivision (h), are: ‘(1) the employee's engagement in a protected
activity ...; (2) retaliatory animus on the part of the employer; (3) an
adverse action by the employer; (4) a causal link between the retaliatory
animus and the adverse action; (5) damages; and (6) causation.’” (Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 243 [quoting Mamou
v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 713].)
“The causal link may be
established by an inference derived from circumstantial evidence, ‘such as the
employer’s knowledge that the [employee] engaged in protected activities and
the proximity in time between the protected action and allegedly retaliatory employment
decision.’ [Citation.]” (Morgan v. Regents of University of California
(2000) 88 Cal.App.4th 52, 69.) Intervals of more than a few months have been
found too long to support causation. (Le
Mere, supra, 35 Cal.App.5th 237, 243 [citing Cornwell v.
Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036].)
Plaintiff alleges
that she “continually brought her neck and back problems” to the attention of
Defendants and requested accommodation. (FAC ¶ 7.) After Defendants provided
inadequate accommodation, Plaintiff “continually notified” them that the
accommodations were insufficient and did not alleviate her neck and back
problems, and “made further requests for a proper and suitable desk and chair.”
(FAC ¶ 7.) Plaintiff does not plead any specific dates on which her requests
were made. Given this, it is not possible to infer whether Plaintiff’s
engagement in protected activities was sufficiently proximate in time to her
termination to support a causal link.
Accordingly, the
demurrer is sustained as to the fifth cause of action.
Sixth Cause of Action for Violation of Labor Code § 1102.5
(Whistleblower Statute)
Plaintiff’s sixth cause of action is premised
on Labor Code § 1102.5, subd. (b), which forbids “[a]n employer, or any person acting
on behalf of the employer,” from retaliating against an employee for disclosing
information “to a government or law enforcement agency, to a person with
authority over the employee or another employee who has the authority to
investigate, discover, or correct the violation or noncompliance . . . if the
employee has reasonable cause to believe that the information discloses a
violation of state or federal statute, or a violation of or noncompliance with
a local, state, or federal rule or regulation, regardless of whether disclosing
the information is part of the employee's job duties.”
Plaintiff alleges that she engaged in legally
protected activities under section 1102.5 by reporting to Quest and Cuenco
workplace safety violations, meal period and rest period violations, and
fraudulent conduct. (FAC ¶ 43.) Plaintiff further alleges that Defendants
terminated her based on those activities. (FAC ¶ 45.)
The
parties dispute whether Cuenco may be held individually liable under section
1102.5, as “any person acting on behalf of the employer.” (Labor Code § 1102.5,
subd. (b).)
The Court agrees with Defendants that section 1102.5 does
not provide for individual liability against Cuenco. (See Tillery v. Lollis (E.D.
Cal. 2015) 2015 WL 4873111, *8-10 [collecting cases].) The Court also finds
that Plaintiff has failed to allege that her termination was caused by the
alleged protected activity; as with the retaliation claim, though the purported
causal link is premised solely on temporal proximity, Plaintiff has failed to
allege any of the dates on which her protected activity took place.
Accordingly, the demurrer is sustained as to the sixth cause of action.