Judge Bruce G. Iwasaki, Case Number: 23STCV20219, Date: 2024-04-25 Tentative Ruling

On August 23, 2023, Plaintiff Tina Edwards (Plaintiff) sued Defendants Los Angeles County Metropolitan Transportation Authority (MTA), Anthony Williams (Williams), Torry Heard (Heard), Bennie Myers (Myers), and Vincent Arrington (Arrington).

On January 26, 2024, Plaintiff filed a First Amended Complaint (FAC), alleging causes of action for (1) discrimination in violation of the FEHA; (2) hostile work environment harassment in violation of the FEHA; (3) retaliation in violation of the FEHA; (4) failure to provide reasonable accommodation in violation of the FEHA; (5) failure to engage in the interactive process in violation of FEHA; (6) failure to prevent discrimination, harassment, or retaliation in violation of FEHA; (7) whistleblower retaliation (Labor code § 1102.5); and (8) intentional infliction of emotional distress.

On February 27, 2024, Los Angeles County Metropolitan Transportation Authority, Bennie Myers, and Vincent Arrington demurred to the First Amended Complaint. On February 28, 2024, Defendants also filed a motion to strike portions of the FAC. On March 7, 2024, Defendant Williams filed a joinder to the demurrer and motion to strike.

Plaintiff opposed the demurrer and motion to strike, and also opposed Defendant Williams’s joinder.

The demurrer is sustained with leave to amend. The motion to strike is granted with leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

Defendants demur to Plaintiff’s FAC on the grounds that the allegations contained in Plaintiff’s FAC fail to state facts sufficient to constitute causes of action for 1.) discrimination on the basis of disability and race; 2.) harassment on the basis of disability and race; 3.) failure to provide reasonable accommodations; 4.) failure to engage in the good faith interactive process; and 5.) intentional infliction of emotional distress.

FEHA prohibits an employer from discriminating against any employee based on race, age, sex or other protected characteristics. (Gov. Code, § 12940, subd. (a).) To withstand demurrer, the plaintiff must sufficiently plead all elements of a discrimination cause of action: (1) that she was a member of a protected class; (2) that she was adequately performing the essential functions of her position; (3) that she suffered an adverse employment action; and (4) that the circumstances suggest a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; see also De Jung v. Superior Court (2008) 169 Cal.App.4th 533, 551 [requiring causal relationship between discriminatory animus and adverse employment action].)

Defendants demur to the first cause of action on the grounds that Plaintiff has failed to state a claim for disability discrimination.

The elements for a disability discrimination claim under FEHA requires a showing that (1) the plaintiff suffered from a disability, (2) the plaintiff was otherwise qualified to do his or her job, with or without reasonable accommodation, and (3) the plaintiff was subjected to adverse employment action because of the disability. (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1037.)

Here, Plaintiff alleges that she suffered from anxiety and depression when she worked for Defendants, which constituted a disability because it affected one or more major life activities, including having trouble breathing, difficulty performing job functions, and difficulty sleeping. (FAC ¶15 (f),(h),(i),(j),(w),(aa).) Further, the FAC alleges that Plaintiff suffered numerous adverse employment actions because of her disability, such as being excluded from communications and information, overlooked for opportunities, denied training and being ignored when she asked for assistance. (FAC ¶15(k).)

On demurrer, Defendants contend that the FAC fails to allege sufficient allegations showing a causal relationship between her disability arising from anxiety and depression and these purported adverse employment decisions.

The demurrer is well taken. The allegations tying her alleged disability and Plaintiff’s adverse employment decisions are entirely conclusory. For example, she states that no one would train her on her new route, but (even assuming this constitutes an adverse employment decision) there is no tie between her disability and the person responsible for denying her this training. Plaintiff’s other disability discrimination allegations suffer similar defects.

The demurrer to this cause of action as applied to an alleged disability is sustained.

Defendants also demur to the first cause of action on the grounds that Plaintiff has failed to state a claim for discrimination based on race. As Defendants note, Plaintiff points to two unrelated comments pertaining to her race and then concludes that subsequent employment action was based on her race.

In support of the racial discrimination claim, Plaintiff argues that the FAC alleges, in September 2022, non-party Hynes (described as the “Union Chairman”) called Plaintiff into his office to reprimand her about making protected complaints regarding sexual harassment because she was Black. (FAC ¶ 15(t).) Then, “in retaliation” for making the complaint, Plaintiff was involuntarily transferred to a new Division. (FAC ¶ 15(t).)

These allegations are confusing. First, it is unclear that non-party Hynes made the adverse employment decision of transferring Plaintiff or that he exercises any management or control over Plaintiff to even effectuate the transfer. Second, although there is a reference to Plaintiff’s race, the allegation is vague as to the Hynes’ racial animus as being the basis of the adverse employment decision; in fact, the allegation more clearly supports a claim for retaliation for making the sexual harassment complaint rather than racial discrimination.

Additionally, in January and February 2023, Defendant Myers approached her and called her “exotic” and said that he “never had a Jamaican before” but that it was “on [his] bucketlist,” while making suggestive movements with his groin. (FAC ¶15(u), (v).) When Plaintiff complained about this conduct to two supervisors, the supervisors allegedly did nothing but tell her that she was the one who needed verbal counseling and a sexual harassment class. (FAC ¶15(z).)

Again, the allegations do not show that her supervisor ignored the complaint based on her race. Nor do these allegations show even a specific adverse employment action based on her race. Defendants do not demur to the claim to the extent it alleges discrimination based on Plaintiff’s sex/gender, so that claim in the first cause of action remains.

Because the FAC fails to allege that any adverse employment action was taken because of her race, the demurrer to the first cause of action on that basis is sustained.

To establish a prima facie case of harassment under the FEHA, the Plaintiff must show that: (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment based on her protected status; and (3) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 867.)

In arguing that Plaintiff suffered harassment based on her disability, Plaintiff points to her allegations that her work environment grew increasingly hostile, Plaintiff was excluded from communications and information, was overlooked for opportunities, refused assistance, and ostracized. (FAC ¶15(k).) These are the same allegations that Plaintiff relies upon to demonstrate discrimination.

Plaintiff also argues that when she spoke to her supervisor, about this alleged harassment, she was “repeatedly cut off” and made to feel like nothing would be done. (FAC ¶ 15 (y).)

However, there are no allegations showing harassment by Defendants based on her disability. Thus, assuming that these conclusory allegations of a hostile work environment were sufficient, they fail to demonstrate that the environment was hostile because of Defendants’ conduct towards Plaintiff based on her disability. That is, as the Reply correctly notes, none of Plaintiff’s allegations raise even the inference that she was subject to any harassment because of her disability of anxiety and depression.

The demurrer to the second cause of action as it concerns disability is sustained.

In arguing for harassment based on race, Plaintiff relies on the same conduct as the discrimination claim.

For similar reasons as the discrimination claim, this claim is also defective. Plaintiff alleges she experienced harassment based on race by Defendant Myers during one isolated incident involving a statement that Plaintiff was Jamaican. This isolated incident merely referencing Plaintiff’s race is insufficient to show harassment based on Plaintiff’s race.

To state a claim for failure to provide reasonable accommodation, Plaintiff must show that (1) she has a disability; (2) she was qualified to perform the essential functions of the position; and (3) her employer failed to reasonably accommodate the plaintiff’s disability. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1009-1010.)

“While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.) Reasonable accommodations include, among things, job restructuring, modified work schedules, and reassignments to vacant positions. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 225.)

In October 2020, Plaintiff told her supervisor, Marisol Doe, that she was experiencing severe anxiety about going to work given the ongoing harassment, but Marisol Doe “did not engage in a meaningful discussion and instead told Plaintiff that she had no option but to come into work.” (FAC ¶15(h).) Marisol Doe also indicated that she would refer Plaintiff to counseling. (FAC ¶ 15(h).) When Plaintiff’s initial harasser committed suicide, Plaintiff alleges that she experienced extreme anxiety but was only afforded one day off, despite stating that she needed more time to tend to her mental health. (FAC ¶ 15(i).)

The claim fails as a matter of law. All Plaintiff’s allegations show is that she was not afforded the accommodation for her disability that she wanted – more time off. However, employers are not required to provide the accommodation the employee wants or even the best accommodation, only a reasonable one. (Hanson v. Lucky Stores, Inc., supra, 74 Cal.App.4th at 228.) Employers have discretion to choose an effective accommodation based on such things as cost and ease of providing the accommodation. (Ibid.) Here, Plaintiff’s allegations do not show that the offer of counseling or one day off were unreasonable accommodations.

Additionally, for the reasons discussed in the motion to strike, these allegations are time barred.

The FAC then alleges that on March 2023, Plaintiff took a medical leave from work to address her mental health. With respect to this allegation, Plaintiff does not allege that she requested any specific reasonable accommodation that was not given. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation.”].)

The FAC fails to state a claim for failure to provide reasonable accommodation. The demurrer to the fourth cause of action is sustained.

To state a cause of action under FEHA for failure to engage in a timely, good faith interactive process, Plaintiff must prove: (1) she has a disability covered by the FEHA and known to the defendant; (2) she requested that the Defendant make a reasonable accommodation for her disability so that she would be able to perform the essential job requirements of the job being sought; (3) she was willing to participate in an interactive process to determine whether a reasonable accommodation could be made so that she could perform the essential job requirements; (4) the defendant failed to participate in a timely good faith interactive process to determine whether reasonable accommodation could be made. (See Gelfo v. Lockheed Martin Corp., supra, 140 Cal.App.4th at pp. 61-62.)

For the reasons discussed on the demurrer to the fourth cause of action, this cause of action fails because Plaintiff has not alleged any reasonable accommodation that Defendants could have provided in the interactive process. (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 983 [availability of a reasonable accommodation is necessary to a Govt. Code section 12940, subd. (n) claim]; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1018 [to prevail on a claim for failure to engage in the interactive process, an employee must identify a reasonable accommodation that could have been available].) The demurrer to the fifth cause of action is sustained.

Plaintiff has agreed to dismiss her claim for intentional infliction of emotional distress. (Opp., 1, fn. 1.) The demurrer to this cause of action is moot.

Plaintiff’s opposition to Defendant Williams’s joinder on procedural grounds fails.

As a preliminary matter, none of the case authority cited by Plaintiff suggests that a joinder on demurrer is improper. (See Opp., 1:15-26 [citing Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382 [discussing a joinder in the context of anti-SLAPP motion]].)[2] Further, contrary to the argument in the opposition, Defendant Williams’ joinder does seek affirmative relief. (Joinder, pp. 2-3.)

Additionally, while Defendant Williams did not meet and confer prior to joining Defendants’ demurrer, the Rules of Court are unclear that the statute applies under such circumstances. Moreover, where Defendant Williams seeks only the relief sought in the demurrer and motion to strike and the parties did properly meet and confer on these motions, the Court finds that Defendant Williams substantially complied.

Thus, Defendant Williams’s joinder is properly before this Court for consideration. The demurrer is thus also granted as to the causes of action against Defendant Williams well.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”¿(Code Civ. Proc., § 436.) “Immaterial” or “irrelevant” matters include allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subds. (b)(1)-(3).)

Defendants move to strike from the FAC any allegations that occurred prior to November 1, 2021 (Paragraph 15(a)-(m)) on the grounds that these allegations are untimely.

Under FEHA, there are effectively two limitations periods that must be satisfied. “Section 12960 provides that an employee bringing an FEHA claim must exhaust the administrative remedy by filing an administrative complaint with the [Department of Fair Employment and Housing (“DFEH”)] within one year after the alleged unlawful action occurred.” (Acuna v. San Diego Gas & Elec. Co. (2013) 217 Cal.App.4th 1402, 1412.) After the employee files an administrative complaint, if the DFEH does not issue an accusation within a specified period, it must issue a right-to-sue letter to the employee. (Id. at 1413 [citing Gov. Code, § 12965].) The employee must bring a civil suit within one year of the right-to-sue notice. (Id.)

Filing a new DFEH complaint does not revive expired claims. ((Acuna v. San Diego Gas & Electric. Co. (2013) 217 Cal.App.4th 1402, 1417.)

Here, Defendants – relying on judicially noticeable documents – note that Plaintiff filed a Complaint with California Civil Rights Department (CRD)[3] on November 1, 2021. (RJN Ex. 4.) Thereafter, Plaintiff received an immediate right-to-sue letter from the CRD on November 1, 2021. (RJN Ex. 5.) However, Plaintiff failed to file a civil lawsuit within one year of receipt of her right-to-sue letter. Thus, Defendants argue that any allegations within her November 1, 2021 CRD Complaint are untimely in the present civil lawsuit.

Thereafter, Plaintiff filed another Complaint with the CRD on January 27, 2023. (Def.’s RJN Ex. 6.)

Plaintiff, in opposition, attempts to rely on the continuing violation doctrine. Under this doctrine, Plaintiff argues that an employer can be held liable for actions that take place outside the limitations period if the acts are sufficiently linked to unlawful conduct within the limitations period. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823.)

However, the continuing violation doctrine does not apply under all circumstances.

In Richards, the California Supreme Court held the continuing violations doctrine permitted a discrimination claim directed to an employer's persistent failure to eliminate a hostile work environment if the employer's unlawful actions “are (1) sufficiently similar in kind-recognizing, as this case illustrates, that similar kinds of unlawful employer conduct ... may take a number of different forms [citation]; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence. [Citation.]” (Richards, supra, 26 Cal.4th at 823.) That is, for example, “when an employer engages in a continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a disabled employee or engaging in disability harassment ... the statute of limitations begins to run ... either when the course of conduct is brought to an end, as by the employer's cessation of such conduct or by the employee's resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Richards, supra, 26 Cal.4th at 823–24.)

When an employee claims unlawful discrimination in an employer's adverse employment action, the one-year statutory period for filing a DFEH claim accrues at the time of the discrete adverse employment action. (See e.g., Romano v. Rockwell Int'l, Inc. (1996) 14 Cal.4th 479, 493 [one-year period accrues at the time employee is actually terminated].)

Here, Plaintiff’s application of the continuing violation doctrine is unclear from the FAC. For example, as noted in the demurrer to the discrimination claim, the FAC is full of various acts and incidents that appear to be “ ‘isolated employment decisions’ ” in different circumstances made by different decision makers. (Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 66-67.) These acts cannot satisfy the continuing violation doctrine.

Further, as noted in reply, Plaintiff alleges five individuals engaged in inappropriate actions against her during her employment with Defendant MTA; all the allegations involving Quincy Jackson and Anthony Williams all occurred before November 1, 2021. (FAC ¶ 15 (a)-(l).)

Based on the foregoing, Plaintiff has not alleged facts showing that the continuing violation doctrine applies to the allegations that occurred prior to November 1, 2021. Therefore, the motion to strike is granted.

The Demurrer is sustained as to the first cause of action for discrimination based on race and disability, the second cause of action for harassment based on race and disability, and the fourth and fifth causes of action; the demurrer to the eighth cause of action is moot based on Plaintiff’s dismissal. Based on the joinder, the demurrer is also sustained as the causes of action alleged against Defendant Williams. The Motion to Strike is granted. Plaintiff shall have leave to amend. An amended pleading shall be filed and served no later than May 24, 2024.

[1] Although the first cause of action is labeled a single cause of action, this claim consists of separate causes of action arising from separate discrimination liability based on disability, race, and sex. The same is true for the second cause of action for harassment. Thus, the demurrer will treat these claims as separate claims.

[2] Plaintiff’s citation to Cheu v. Red Sun, 2021 Cal. Super. LEXIS 53401 – Orange County Superior Court decision – is improper and non-binding.

[3] Formerly known as the Department of Fair Employment and Housing (“DFEH”).

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