Judge: Christopher K. Lui, Case: 20STCV16798, Date: 2022-08-17 Tentative Ruling
Case Number: 20STCV16798 Hearing Date: August 17, 2022 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Plaintiff alleges that after he returned from medical leave after an industrial injury, Defendant stripped his peace officer status and demoted Plaintiff to a low-level Intermediate Clerk position with lower pay and reduced benefits. Plaintiff remains employed to date with Defendant, in the demoted position.
Defendants County of Los Angeles
(sued as the County of Los Angeles Probation Department and Los Angeles County
Probation Department) demurs to the Third Amended Complaint.
TENTATIVE RULING
Defendants County of Los Angeles’s demurrer to the Third Amended Complaint
is SUSTAINED without leave to amend as to the sixth and seventh causes
of action.
Defendant is to answer the remaining allegations in the Third Amended Complaint within 10 days.
ANALYSIS
Demurrer
Meet
and Confer
The Declaration of Larry D.
Stratton reflects that Defendant’s counsel satisfies the requirement of CCP §
430.41.
Discussion
1. Sixth
Cause of Action (Failure to Accommodate—Violation of Gov. Code § 12940(m)).
Defendant
argues that there are insufficient facts pled to constitute a cause of action.
In addition to prohibiting disability discrimination, FEHA provides an
independent cause of action for an employer's failure “to make reasonable
accommodation for the known physical or mental disability of an applicant
or [*598] employee” unless the accommodation would cause “undue hardship”
to the employer. (§ 12940, subd. (m)(1).) Once an employer is aware of a
disability, it has an “affirmative duty” to make reasonable accommodations for
the employee. (Cal. Code Regs., tit. 2, § 11068, subd. (a).)
(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th
570, 597-98.)
To establish a failure to accommodate
claim, Brown must show (1) she has a disability covered by FEHA; (2) she can
perform the essential functions of the position; and (3) LAUSD failed
reasonably to accommodate her disability. (Jensen v. Wells Fargo Bank (2000) 85
Cal.App.4th 245, 256–257 [102 Cal. Rptr. 2d 55].) A “reasonable accommodation”
means a modification or adjustment to the workplace that enables the employee
to perform the essential functions of the job held or desired. (Scotch
v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010 [93 Cal. Rptr.
3d 338].) Although an accommodation is not reasonable if it produces an undue
[*1108] hardship to the employer, a
plaintiff need not initially plead or produce evidence showing that the
accommodation would not impose such an undue hardship. (Bagatti v. Department
of Rehabilitation (2002) 97 Cal.App.4th 344, 356 [118 Cal. Rptr. 2d 443].)
Importantly, whether plaintiff's requested accommodation is reasonable cannot
be determined on demurrer. (Id. at pp. 368–369.)
‘
(Brown v. L.A. Unified Sch.
Dist. (2021) 60 Cal.App.5th 1092, 1107-08 [bold emphasis added].)
Jensen's claim is different. Her claim falls under Government Code
section 12940, subdivision (k), which makes it an unlawful employment practice
"[f]or an employer or other entity covered by this part to fail to make
reasonable accommodation for the known physical or mental disability of an . .
. employee." Since her ordeal, Jensen has concededly been unable to
perform the usual functions of branch manager, the position for which she was
qualified and in which she was employed until August 1996. The question here is
whether Wells Fargo failed to reasonably accommodate her in accordance
with subdivision (k); specifically, whether Wells Fargo failed to accommodate
her by "reassignment to a vacant position," one of the methods of
"reasonable accommodation" specified in the statutory definition,
Government Code section 12926, subdivision (n)(2). n5
FOOTNOTES
n5 Government Code section 12926, subdivision (n[1])
provides: " 'Reasonable accommodation' may include either of the
following: [¶] (1) Making existing facilities used by employees readily
accessible to, and usable by, individuals with disabilities. [¶] (2) Job
restructuring, part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices, adjustment or
modifications of examinations, training materials or policies, the provision of
qualified readers or interpreters, and other similar accommodations for
individuals with disabilities."
The elements of a failure to accommodate claim are similar to the
elements of a Government Code section 12940, subdivision (a) discrimination
claim, but there are important differences. The plaintiff must, in both cases,
establish that he or she suffers from a disability covered by FEHA and that he
or she is a qualified individual. For purposes of a section 12940, subdivision
(k) claim, the plaintiff proves he or she is a qualified individual by
establishing that he or she can perform the essential functions of the
position to which reassignment is sought, rather than the essential functions
of the existing position. (Citations omitted.) More significantly, the
third element discussed in Brundage—establishing that an "adverse
employment action" was caused by the employee's disability—is irrelevant
to this type of claim. Under the express provisions of the FEHA, the employer's
failure to reasonably accommodate a disabled individual is a violation of the
statute in and of itself. (Gov. Code, § 12940, subd. (k).) With these
differences in mind, we turn to the evidence set forth in the summary
[*257] judgment motion to test whether Wells Fargo succeeded
in negating an essential element of Jensen's FEHA claim.
(Jensen v.
Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256-57 [bold emphasis added][.)
Statutory causes of action must be pled with specificity (Covenant Care, supra, 32 Cal.4th
771, 790).
Despite being given a final opportunity to amend, Plaintiff
still has not specifically pled what disabilities he currently has—which he
claims were caused by his current assignment as an Intermediate Clerk.
Plaintiff alleges that from 2009 to the present day, he was
returned to work by his medical healthcare providers with medical workplace
restrictions, such as limitations to walking, sitting and lifting, and was
placed on varying modified duties with medical workplace restrictions on an ongoing
and continuing basis. (3AC, ¶ 11.) Plaintiff alleges that he was returned to work
by his medical providers with medical restrictions, which included light duty
or limits on standing, sitting, typing, lifting, and, for a limited time in
2014, working with juveniles. (Id. at ¶ 13.) Plaintiff alleges that he
was placed in work assignments and work positions that were out of compliance
with his medical workplace restrictions, including his demotion to an
Intermediate Clerk, the lowest possible clerk position, in 2018 where he
remains. (Id.)
Plaintiff alleges that, since 2018 and to date, Plaintiff
suffered new and additional workplace industrial injuries and required medical care
and treatment, due to the improper placement in the Intermediate Clerk position
that were against Plaintiff’s medical workplace restrictions. (Id. at ¶
14.)
Plaintiff makes the following generalized, non-specific
allegations at ¶ 15:
15. Since 2018 and to date, Plaintiff has
provided Defendants with medical workplace restrictions regarding his current
work position which on an on-going and continuing basis Defendants have not
honored and failed to engage in the good faith interactive process to determine
reasonable accommodations and an appropriate job placement. Workplace
restrictions and necessary accommodations include November 29, 2017
restrictions until January 15, 2019; additional work restrictions were also
given to Plaintiff from December 2017 to December 2018.Medical documentation
from January 22, 2018 shows that Plaintiff was returned to the same modified
work restrictions as he had been given previously; and his he was given further
modified work restrictions until June 1, 2018 – none of which were
accommodated. Plaintiff’s medical work status regarding anticipated “permanent”
status was changed from December 2017 to August 2018 without review by Defendants
or further engagement for appropriate accommodations. Plaintiff’s medical
restrictions were also revised by his medical healthcare providers in May 2019,
July 2019 and again in November 2019. None of these work restrictions were met
with further engagement in interactive process by Defendants to determine
reasonable workplace accommodations or to revisit his current job placement.
Plaintiff also makes the following general, non-specific
allegations at ¶ 16:
16. Plaintiff repeatedly requested from
Defendants to review the reassignments of Plaintiff, to engage in the
interactive process and review the reasonable accommodations required in order
to appropriately assign Plaintiff to the same or similar position he held
previously. Plaintiff repeatedly advised Defendants that the placement by
Defendants of Plaintiff in this specific work assignment caused him new,
further and additional industrial injuries to Plaintiff due to the
inappropriate assignment in relation to his work restrictions given the work
duties required and work conditions of the assignment. Defendants, including
TOYEA SIMS and CYNTHIA MILAUTO, on an on-going and continuing basis, made
unilateral decisions regarding accommodations, job assignments and return to
work of Plaintiff despite there being other positions with Defendants open and available
for which Plaintiff was qualified.
Plaintiff also makes the following general, non-specific
allegations at ¶ 18:
18. Since 2017 and continuing, Plaintiff
has repeatedly requested transfers to alternate positions that would work
within his work restrictions that have been ignored by Defendants. As late as
February 2021, Defendants made a “Job Offer” to Plaintiff for the same
Intermediate Clerk position, utilizing restrictions from 2012, 2013 and 2014
and not his current, updated restrictions without further engagement with
Plaintiff in the good faith interactive process to determine reasonable
accommodations showing that Defendants favor form – getting the form signed –
over the function of actually engaging in the interactive process.
In connection with the ruling on the prior demurrer, the
Court warned Plaintiff that this would be his final opportunity to amend, yet
he fails to specify exactly what workplace injuries he suffered in the current
Intermediate Clerk assignment, how the current assignment is inconsistent with
unspecified workplace restrictions, and how the position he desires to hold would
be a reasonable accommodation of his unspecified workplace restrictions.
While Plaintiff has pled sufficient facts that he has suffered
an adverse employment action in the form of a demotion for purposes of a
disability discrimination or retaliation cause of action (See, e.g., ¶¶
19, 21), he has failed to sufficiently plead specific facts demonstrating a
failure to accommodate his unspecified disabilities.
Moreover, as pointed out by Defendant, Plaintiff’s allegations
as to what happened after May 1, 2019—the date of his DFEH right-to-sue letter
(3AC, ¶ 5)—cannot be considered, as Plaintiff has not pled exhaustion of administrative
remedies for acts that occurred post-May 1, 2019. (See 3AC, ¶¶ 83-84.)
Before bringing a lawsuit for FEHA violations, an aggrieved
employee must exhaust administrative remedies by timely filing an
administrative complaint with
the DFEH and receiving
a right-to-sue notice. (Gov. Code, §§ 12960, subd. (b), 12962, subd. (c).)
Exhaustion of administrative remedies is “‘a jurisdictional prerequisite to
resort to the courts.’” (Johnson, supra, 24 Cal.4th at p. 70.)
(Wassmann v. South Orange County Community College Dist. (2018)
24 Cal.App.5th 825, 850.)
As such, the demurrer to the sixth cause of action is
SUSTAINED without leave to amend.
2. Seventh
Cause of Action (Failure to Engage in Good Faith Interactive Process—Violation
of Gov. Code § 12940(n)).
Defendant
argues that there are insufficient facts pled to constitute a cause of action.
Under section 12940, subdivision (n),
it is separately actionable for an employer to fail “to engage in a timely,
good faith, interactive process with the employee … to determine effective
reasonable accommodations, if any, in response to a request for reasonable
accommodation by an employee … with a known physical or mental disability or
known medical condition.” (§ 12940, subd. (n); see Gelfo
v. Lockheed Martin Corp. (2006)
140 Cal.App.4th 34, 54 [43 Cal. Rptr. 3d 874].) “‘The “interactive process”
required by the FEHA is an informal process with the employee or the employee's
representative, to attempt to identify a reasonable accommodation that will
enable the employee to perform the job effectively.’” (Scotch
v. Art Institute of California
(2009) 173 Cal.App.4th 986, 1013 [93 Cal. Rptr. 3d 338].) Both the employer and
the employee are responsible for participating in the interactive process.
Typically, the employee must initiate the process “unless the disability
and resulting limitations are obvious.” (Ibid.)
(Soria, supra, 5 Cal.App.5th at 600.)
For the reasons discussed above, because statutory causes of
action must be pled with specificity (Covenant
Care, supra, 32 Cal.4th at 790), Plaintiff has failed to pled
facts which give rise to the duty to engage in the interactive process. Plaintiff
fails to specify exactly what workplace injuries he suffered in the current
Intermediate Clerk assignment, and how the current assignment is inconsistent
with unspecified workplace restrictions. Further, as discussed above, Plaintiff’s
allegations regarding the interactive process meetings in 2020 and 2021 (3AC, ¶¶ 101, 102) cannot be considered due to
failure to exhaust administrative remedies with the DFEH.
The demurrer to the seventh cause of action is SUSTAINED without leave to amend.
Defendant is to answer the remainder of the Third Amended
Complaint within 10 days.