Judge: Christopher K. Lui, Case: 22STCV29815, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCV29815    Hearing Date: May 4, 2023    Dept: 76

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein.  Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter.  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.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that Defendant has discriminated against Plaintiff because of his physical disability and has failed to grant him a reasonable accommodation of his disability.     

Defendant City of Los Angeles demurs to the Complaint.

TENTATIVE RULING

Defendant City of Los Angeles’s demurrer to the Complaint is SUSTAINED with leave to amend as to the first, fourth and fifth causes of action. 

            Plaintiff is given 30 days’ leave to amend as indicated.

ANALYSIS

Defendant’s Demurrer

Meet and Confer

            The Declaration of Joseph Briones reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in CCP § 430.41.

Discussion

Defendant City of Los Angeles demurs to the Complaint demurs to the Complaint as follows:

1.         First Cause of Action (Discrimination Based on Physical Disability Under the Fair Employment and Housing Act).

            Defendant argues that the alleged failure to accommodate Plaintiff’s disability does not constitute an adverse employment action for purposes of a discrimination claim.  

            Defendant also argues that a “majority of events” alleged by Plaintiff do not qualify as material adverse employment actions.  

“A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was  [*345]  subjected to adverse employment action because of his disability.’” (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 886 [58 Cal. Rptr. 3d 729].)

(Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344-45.) 

“In order to meet the FEHA standard, an employer's adverse treatment must ‘materially affect the terms, conditions, or privileges of employment.’ [Citation.] ‘[T]he determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.’ [Citation.] Such a determination ‘is not, by its nature, susceptible to a mathematically precise test.’ [Citation.] ‘Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of sections 12940(a) and 12940(h).’ [Citation.] FEHA not only protects against ‘ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity [*92]  for advancement … .’” (Citations omitted.)

 “‘A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.’ [Citation.] ‘“[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.”’” (Citation omitted.) For example, “‘[a] mere oral or written criticism of an employee … does not meet the definition of an adverse employment action under [the] FEHA.’” (Citation omitted.) Similarly, “[m]ere ostracism in the workplace is insufficient to establish an adverse employment  decision. [Citations.] However, ‘“[W]orkplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for … retaliation cases.”’” (Citation omitted.)

(Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 91-92.)

      Plaintiff alleges that his disability is transversal myelitis and related medical issues, a condition affecting his musculoskeletal system, nervous system and immune system, that limits certain major activities, including working in locations in close quarters with others while COVID-19 and its variants are ongoing. (Complaint, ¶ 7.)  

Here, Defendant’s alleged failures in regard to accommodating Plaintiff’s disabilities (Complaint, ¶ 8) do not constitute adverse employment actions, although they may constitute failure to provide reasonable accommodation, which is a separate FEHA violation. Requiring Plaintiff to come in two days a week like other employees does not allege an adverse employment action, especially where he is allegedly being treated like all other employees, and is only not to his liking. The allegation that Plaintiff was not paid for two work days without reducing his job duties or demands of his position is not tied to Plaintiff’s disability.

[W]e note the FEHA scheme prohibits specific unlawful employment practices by covered employers, e.g., discrimination, retaliation, failure to make reasonable accommodation, failure to engage in the interactive process with the employee. We conclude that the commission of one specific prohibited employment practice does not, in and of itself, constitute commission of all other prohibited employment practices under the broad rubric of policies or practices affecting the “terms, conditions or privileges of employment.” Such an interpretation would be contrary to the whole point of [*1107]  specifically separating conduct into individual unlawful employment practices. Brown has not alleged she was the target of disparate treatment. Nor has she alleged a policy or practice that had a disproportionate effect on employees suffering from a disability. She simply alleged that LAUSD failed to engage meaningfully with her in the interactive process and would not reasonably accommodate her disability. Those allegations pertain to her remaining causes of action, but we decline to construe them, without more, as adverse employment actions sufficient to support a claim of discrimination in the terms and conditions of employment. We agree with the trial court that Brown has conflated “‘adverse employment action’ with the failure to accommodate and failure to engage claims.”

Moreover, even if the allegations are deemed sufficient to constitute adverse employment actions, Brown has alleged no facts from which discriminatory intent be inferred. In other words, she has alleged no facts from which we can infer LAUSD clung to its belief that the campus was safe and refused to accommodate her because it was biased against her as a person with a disability. At most, the FAC alleged facts showing a disagreement between the parties as to whether the Wi-Fi was causing her disability. We conclude she has failed to allege discrimination in employment.

Because we find Brown has failed to allege discrimination or retaliation in employment, we also conclude she has failed to sufficiently allege, in her fifth cause of action, failure to prevent discrimination and retaliation in employment, in violation of section 12940, subdivision (k).

(Brown v. L.A. Unified Sch. Dist. (2021) 60 Cal. App. 5th 1092, 1105-07.) 

            The demurrer to the first cause of action is SUSTAINED with leave to amend.

2.         Fourth Cause of Action (Discrimination Based on National Origin/Ancestry Under the Fair Employment and Housing Act).

            Defendant argues that this cause of action does not plead facts to support a claim for national origin/ancestry discrimination, including what adverse actions were based on this characteristic.

Under the FEHA, it is unlawful for an employer, because of a protected classification, to discriminate against an employee “in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).) To state a prima facie case for discrimination in violation of the FEHA, a plaintiff must establish that (1) [ ]he was a member of a protected class, (2) [ ]he was performing competently in the position [ ]he held, (3) [ ]he suffered an adverse employment action, and (4) some other circumstance suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [100 Cal. Rptr. 2d 352, 8 P.3d 1089].)

(Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 577.)

            As discussed above, Plaintiff has not alleged facts which constitute an adverse employment action for purposes of a discrimination cause of action, nor facts showing that Plaintiff’s national origin was a motivating factor for such adverse employment action.

            The demurrer to the fourth cause of action is SUSTAINED with leave to amend.

3.         Fifth Cause of Action (Retaliation In Violation of FEHA and ADA).

            Defendant argues that Plaintiff has failed to allege that he experienced an adverse employment action because of retaliation.

The FEHA protects employees against retaliation for filing a complaint or participating in proceedings or hearings under the act, or for opposing conduct made unlawful by the act. (Gov. Code, § 12940, subd. (h).) Specifically, section 12940, subdivision (h), declares that it is an unlawful employment practice for “any employer … or person to discharge, expel, or otherwise discriminate against any person because the person 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.”

This enactment aids enforcement of the FEHA and promotes communication and informal dispute resolution in the workplace. (Citation omitted.) Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. (3 Cal.App.4th at p. 476.)

(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472 (bold emphasis added).)

As discussed above, Plaintiff has not alleged facts which constitute an adverse employment action for purposes of a retaliation cause of action, nor facts showing that Plaintiff’s national origin was a motivating factor for such adverse employment action.

            The demurrer to the fifth cause of action is SUSTAINED with leave to amend.

            Plaintiff is given 30 days’ leave to amend.