Judge: Barbara M. Scheper, Case: 23STCV10493, Date: 2023-08-23 Tentative Ruling
Case Number: 23STCV10493 Hearing Date: August 23, 2023 Dept: 30
Dept. 30
Calendar No.
Anderson vs. Mrs.
Gooch’s Natural Food Markets, Inc., et. al., Case No. 23STCV10493
Tentative Ruling
re: Defendant’s Demurrer to Complaint;
Motion to Strike
Defendant Mrs. Gooch’s Natural Food
Markets, Inc. dba Whole Foods Market (Defendant) demurs to and moves to strike
the Complaint of Plaintiff Rebecca Lynn Anderson (Plaintiff). The demurrer is
overruled and the motion to strike is granted.
Defendant is ordered to answer within ten (10) days of today’s date.
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.)
Defendant is a grocery store chain. (Comp. ¶ 3.) Beginning in October
2019, Plaintiff was employed by Defendant as a maintenance associate
responsible for trash disposal, cleaning, and other assignments as needed.
(Comp. ¶ 11.)
In June 2021, Plaintiff allegedly began to experience pain in her
back and legs. Plaintiff’s doctor determined that she suffered from a lumber
sprain and knee pain, and placed her on a medical leave of absence beginning
August 3, 2021. (Comp. ¶ 12.) Plaintiff informed her supervisors and HR
representative of her restrictions and took leave. (Comp. ¶¶ 13-14.) Plaintiff
was cleared to return to work beginning September 12, 2022, with restrictions
including no lifting over 25 pounds, no bending, stooping, crawling, or
squatting, and no shifts longer than 4 hours. (Comp. ¶ 15.) On her return,
Plaintiff was placed as a cashier to accommodate her restrictions, and worked
in that position for the following six weeks. (Comp. ¶ 16.)
Plaintiff was terminated by Defendant on October 25, 2022. In a
meeting that day with her supervisors and a store manager, Plaintiff was
informed that she could no longer be accommodated and that no medical leave was
available, though Plaintiff had not requested further medical leave. (Comp. ¶
17.)
Plaintiff’s Complaint asserts six causes of action against Defendant,
for (1) Disability Discrimination (FEHA); (2) Failure to Provide
Reasonable Accommodations (FEHA); (3) Failure to Engage in a Good Faith
Interactive Process (FEHA); (4) Retaliation (FEHA); (5) Failure to Prevent
Discrimination and Retaliation (FEHA); and (6) Wrongful Termination in
Violation of Public Policy.
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.)
“[T]he
touchstone of a qualifying handicap or disability is an actual or perceived
physiological disorder which affects a major body system and limits the
individual's ability to participate in one or more major life activities.” (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353.) The definition of
physical disability under FEHA includes “[h]aving any physiological disease,
disorder, condition, cosmetic disfigurement, or anatomical loss” that affects
one of several body systems and limits a major life activity. (Gov. Code § 12926, subd. (m).) “Major
life activities” under FEHA are broadly construed and include “physical,
mental, and social activities and working.” (Id. § 12926, subd.
(j)(1)(C).)
Defendant demurs
to Plaintiff’s claim for discrimination on the basis that Plaintiff has not sufficiently
pled that she suffered from a disability. The Court disagrees. The Complaint
alleges that Plaintiff was diagnosed with a lumbar sprain and knee pain, and
that she was cleared to return to work on September 12, 2022, with restrictions
on lifting and moving. (Comp. ¶¶ 12, 15.) These allegations show that Plaintiff
suffered from physical conditions that limited the major life activity of
working, and so are sufficient for purposes of pleading.
In the Reply, Defendant argues for the first time that Plaintiff has
failed to plead the essential functions of her position or that she suffered an
adverse employment action due to her disability. These arguments have not been
timely raised. (See In re Marriage of Khera
& Sameer (2012) 206 Cal.App.4th 1467,
1477 [“Obvious reasons
of fairness militate against consideration of an issue raised initially in the
reply brief…”].) Regardless, neither argument is persuasive. Plaintiff alleges
that she worked in the cashier position for six weeks “without issue,”
indicating that she was otherwise qualified when she was terminated; no further
allegations are necessary to plead Plaintiff’s prima facie case. (See Price v. Victor Valley Union High School District (2022) 85 Cal.App.5th 231, 242 [“Because the determination of essential job functions is a
‘highly fact-specific inquiry,’ it is usually an issue of fact for the jury to
decide.”].) The Complaint also supports an inference that Plaintiff’s
termination was “because of” her disability, as Defendant’s managers allegedly
cited the lack of available accommodation as the reason for the termination.
(Comp. ¶ 17.)
Second Cause of Action
for Failure to Provide Reasonable Accommodation; Third Cause of Action for
Failure to Engage in the Interactive Process
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.)
Defendant argues that Plaintiff has not pled Defendant’s
failure to accommodate her disability or engage in the interactive process,
because Defendant did allegedly accommodate
Plaintiff by allowing
medical leave and transfer to a cashier position. However, an employer’s duty
to accommodate is not indefinitely satisfied by its prior provision of a
reasonable accommodation: “An employer has an
‘affirmative duty’
to reasonably
accommodate
a disabled employee [Citations] and that duty is a ‘continuing’ one that is ‘not exhausted
by one effort.’ ” (Swanson v. Morongo Unified School Dist. (2014) 232
Cal.App.4th 954, 969.) Similarly, an employer’s duty to engage in a
timely, good-faith interactive process “is a continuing duty
and the fact that the employer took some steps to identify a reasonable accommodation
does not absolve the employer of liability for failure to engage in the
interactive process if it is responsible for a later breakdown in the process.”
(Zamora v. Security Industry Specialists, Inc. (2021) 71 Cal.App.5th 1,
41.) Accordingly, the allegations that Defendant previously provided Plaintiff a
reasonable accommodation do not preclude Plaintiff’s claims based on subsequent
failures to accommodate.
Defendant’s alleged termination of Plaintiff from
the cashier position may constitute a breach of its duty to reasonably
accommodate her disability. (See Swanson, 232 Cal.App.4th at 970
[“[c]ourts have made it clear that ‘an employer has a duty to
reassign a disabled employee if an already funded, vacant position at the same
level exists.’ ”].) The allegation that Defendant terminated Plaintiff after summarily
claiming a lack of available accommodation is sufficient to plead Defendant’s
failure to engage in the interactive process in good faith. (Comp. ¶ 17.)
Fourth
Cause of Action for Retaliation
“FEHA makes it
unlawful for the employer to discharge or discriminate against an employee
because he or she has ‘opposed any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in any
proceeding under this part.’ (Gov. Code, § 12940, subd. (h).) Thus, protected
activity takes the form of opposing any practices forbidden by FEHA or
participating in any proceeding conducted by the DFEH or the Fair Employment
and Housing Council (FEHC).” (Nealy v. City of Santa Monica (2015) 234
Cal.App.4th 359, 380.) “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.)
Under Gov. Code, § 12940, subd. (m)(2), it is unlawful
for an employer to “retaliate or otherwise discriminate against a person for
requesting accommodation under this subdivision, regardless of whether the
request was granted.”
Plaintiff’s
retaliation cause of action cites Govt. Code §§ 12940(h) and (m)(2), alleging that
Defendant’s termination of her was “motivated by her disability, perceived
disability, and/or history of disability, requests/need for accommodation, and
opposition to Defendant's conduct related thereto, as previously pled herein.”
(Comp. ¶ 59.) There are no allegations suggesting that Plaintiff engaged in
protected activity as defined under Section 12940(h), by “opposing any practices forbidden
under [FEHA].” However, Plaintiff has pled a claim
under Section 12940(m)(2), for retaliation based on a request for
accommodation. Plaintiff alleges that she returned to work from medical leave
on September 13, 2022, and was moved to a cashier position to accommodate her
restrictions. (Comp. ¶ 16.) Defendant terminated Plaintiff around six weeks
later, on October 25, 2022, and specifically cited her need for accommodation
as the reason for the termination. (Comp. ¶ 17.) Defendant’s proffered reason
for the termination and the “close temporal proximity between a
plaintiff's protected activity and the alleged retaliatory conduct” are sufficient to support a prima facie case of causation.
(Le Mere, 35 Cal.App.5th at 243.)
Defendant does not
present any argument specific to Plaintiff’s fifth and sixth causes of action
(Failure to Prevent Discrimination and Retaliation (FEHA); Wrongful Termination
in Violation of Public Policy), and so the demurrer is also overruled as to
those claims.
Motion
to Strike
Defendant moves to strike
Plaintiff’s prayer for punitive damages and related allegations. (Comp. ¶¶
29-30, 40-41, 51-52, 63-64, 75-76, 87-88, Prayer 5.)
Under Civ. Code § 3294, subd. (b), “An
employer shall not be liable for damages pursuant to subdivision (a), based
upon acts of an employee of the employer, unless the employer ... was
personally guilty of oppression, fraud, or malice. With respect to a corporate
employer, the ... act of oppression, fraud, or malice must be on the part of an officer, director, or
managing agent of the corporation.”
Plaintiff has not opposed the motion to
strike, and so the motion is granted.