Judge: Christopher K. Lui, Case: 23STCV18355, Date: 2023-10-25 Tentative Ruling
Case Number: 23STCV18355 Hearing Date: October 25, 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), 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 her employment was terminated in retaliation for whistleblowing activities. Plaintiff also alleges a failure to accommodate her disability, and wage and hour violations.
Defendants Claremont Graduate University, Zachary First, and Alejandra Gaytan demur to the Complaint.
TENTATIVE RULING
Defendant Alejandra Gaytan’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.
Defendant Zachary First’s demurrer to the eleventh cause of action is SUSTAINED with leave to amend.
Defendant Claremont Graduate University’s demurrer to the first through tenth and fourteenth causes of action is OVERRULED.
Where indicated, Plaintiff is given 30 days’ leave to amend.
ANALYSIS
Discussion
Meet and Confer
The Declaration of John S. Keeney reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.
Discussion
Defendants
Claremont Graduate University, Zachary First, and Alejandra Gaytan demur to the
Complaint as follows:
1. Fourth
Cause of Action (Hostile Work Environment – Harassment in Violation of FEHA).
Defendant
Gaytan demurs to this cause of action on the ground that Plaintiff does not
allege that Gayton took any actions against Plaintiff because of any protected
status, the alleged actions by Gayton were all personnel management actions
which cannot, as a matter of law, support a harassment claim, and Gayton’s
alleged actions could not have interfered with Plaintiff’s work performance
because they occurred after Plaintiff was already on medical leave.
As against
demurring Defendant Gayan, Plaintiff alleges the following:
33. In direct
response to PLAINTIFF’s aforementioned protected activities, several members of
CGU’s upper management including ZACH, GAYTAN, and Patricia Easton (“CGU
Provost”) amplified CGU’s retaliatory efforts
intended to harm PLAINTIFF.
34.
Specifically, from July 2022 through October 2022, CGU’s upper management
subjected PLAINTIFF to abusive conduct, disparate treatment, micromanagement,
and unwarranted hostility during their interpersonal interactions, all of which
were intended to negatively alter the circumstances and conditions of
PLAINTIFF’s employment and force her resignation. As a result of this
treatment, PLAINTIFF’s emotional distress worsened to unbearable levels.
. . .
36. On or
about August 25, 2022, PLAINTIFF emailed a complaint to GAYTAN about several
documents and information missing from her personnel file regarding her
previous complaints made during her employment. GAYTAN and PLAINTIFF exchanged
several emails
back and
forth amongst each other before PLAINTIFF caught wind of CGU’s deceptive
tactics in omitting the information.
37. On or
about October 9, 2022, PLAINTIFF escalated her complaints about the information
missing within her personnel file to several key members of CGU including
Patricia Easton, Len Jessup, and members of CGU’s legal counsel. GAYTAN
responded a few days later demanding that PLAINTIFF cease her attempts to
communicate with these other members of CGU’s upper management in an attempt to
silence PLAINTIFF from complaining about any other illegal activity.
38. On or
about October 12, 2022, PLAINTIFF complained to GAYTAN that she reasonably
believed GAYTAN and DEFENDANTS’ actions to this point exposed them to liability
for subjecting her to a hostile work environment, discrimination, and failing
to pay her all wages owed. In a swift
act of retaliation, GAYTAN responded to PLAINTIFF the next day informing her
that CGU would be removing her email access for the remainder of PLAINTIFF’s
leave.
. . .
78. PLAINTIFF
was subjected to harassing conduct by CGU’s managing agents, most notably
GAYTAN, via their disparate treatment, micromanagement, and unwarranted
hostility towards PLAINTIFF during their interpersonal interactions, all of
which were intended to negatively alter the circumstances and conditions of
PLAINTIFF’s employment and force her resignation. DEFENDANTS’ harassing conduct
includes but is not limited to verbal harassment, abusive conduct, disparate
treatment, micromanagement, and unwarranted hostility and threats of
termination.
79. PLAINTIFF
was subjected to several adverse employment actions based on her disability
including, but not limited to, disability discrimination, failure to provide
accommodations, failure to engage in a good-faith interactive process,
harassment and unfair treatment accompanied with threats of termination at
CGU.
80. At other
times, PLAINTIFF personally witnessed harassing conduct that took place in his
immediate work environment.
81.
DEFENDANTS created and permitted a hostile work environment to exist in
violation of the law to the detriment of PLAINTIFF. CGU’s management,
principals, and employees unfairly treated PLAINTIFF and others using
harassing, threatening, and bullying tactics.
82.
DEFENDANTS’ hostile conduct was frequent, severe and pervasive, such that it created
a hostile work environment.
(Complaint, ¶¶ 78 – 82.)
To prevail on a harassment claim under
FEHA, a plaintiff must produce evidence they were subjected to “offensive
comments or other abusive conduct” that is (1) based on a “protected
characteristic” (here, a claimed disability) and (2) “sufficiently severe or
pervasive as to alter the conditions of [his] employment.” (Citation omitted.)
To constitute harassment, the conduct must be so objectively severe or
pervasive as “‘to create a hostile or abusive working environment.’” (Citation
omitted.) Factors to consider in this context include the frequency of the
conduct, its severity, whether it is physically threatening or humiliating, and
whether it unreasonably interferes with the employee's work performance. (Citation
omitted.)
In addition, disability harassment is
distinguishable from discrimination. (Citation omitted.) “[D]iscrimination
refers to bias in the exercise of official actions on behalf of the employer,
and harassment refers to bias that is expressed or communicated through
interpersonal relations in the workplace.” (Citation omitted.) “[H]arassment
focuses on situations in which the social environment of the workplace becomes
intolerable because the harassment (whether verbal, physical, or visual)
communicates an offensive message to the harassed employee.” (Citation omitted.)
Put differently, “[h]arassment claims are based on a type of conduct that is
avoidable and unnecessary to job performance. No supervisory employee needs to
use slurs or derogatory drawings, to [*737]
physically interfere with freedom
of movement, to engage in unwanted sexual advances, etc., in order to
carry out the legitimate objectives of personnel management. Every supervisory
employee can insulate himself or herself from claims of harassment by
refraining from such conduct. An individual supervisory employee cannot,
however, refrain from engaging in the type of conduct which could later give
rise to a discrimination claim. Making personnel decisions is an inherent and
unavoidable part of the supervisory function.” (Citation omitted.) “When the
harasser is a supervisor, the employer is strictly liable for the supervisor's
actions.” (Citation omitted.)
(Doe v. Dep't of Corr. & Rehab. (2019) 43 Cal.App.5th 721, 736-37.)
Here,
the Complaint does not allege that Defendant Gaytan harassed Plaintiff on the
basis of any category protected by the FEHA, as set forth in Gov. Code,
§ 12940(j).
The
demurrer to the fourth cause of action is SUSTAINED without leave to
amend as to Defendant Gaytan, unless Plaintiff can demonstrate a reasonable
possibility of successful amendment.
2. Eleventh
Cause of Action (Failure to Pay Overtime Wages Pursuant to Labor Code, §§ 510,
558.1 and 1194.)
Defendant
First demurs to this cause of action on the ground that it is duplicative of
the same cause of action alleged against Defendant CGU and thus impermissibly
seeks double recovery of the same overtime wages, which is not permitted by
Labor Code, § 558.1.
Only one published California case has addressed what acts are
sufficient for a finding of personal liability under section 558.1.
In Usher v. White (2021) 64 Cal.App.5th 883 [279 Cal. Rptr. 3d
281], our colleagues in Division One of the Fourth District
considered whether personal liability could be imposed on a corporate officer
who assisted with administrative and banking tasks but had no role in
day-to-day operations or employment policies. After reviewing recent
federal district court decisions, which generally had found an individual could
not be liable under section 558.1 simply by virtue of his or her
status as an owner, director or officer but must have been “‘personally
involved’ in the alleged violations” or “engaged in ‘individual wrongdoing’” (Usher,
at pp. 895–896),11 the Usher court
concluded, “[T]o be held liable under section 558.1, an ‘owner’ …
must either have been personally involved in the purported violation of one or
more of the enumerated provisions; or, absent such personal involvement,
had sufficient participation in the activities of the employer, including, for
example, over those responsible for the alleged wage and hour violations, such
that the ‘owner’ may be deemed to have contributed to, and thus for purposes of
this statute, ‘cause[d]’ a violation.” (Id. at pp. 896–897.) The
court further cautioned that whether an individual could be liable
under section 558.1 “cannot be determined by any bright-line rule, as
this inquiry requires an examination of the particular facts in light of the
conduct, or lack thereof, attributable to the [individual].” (Id. at
p. 897.) Turning to the case before it,
the court held the individual defendant was not liable because the undisputed
facts showed she had not participated in the relevant employment decisions. (Ibid. [“Shirley was never consulted about, or
provided any guidance regarding, the classification of service technicians;
played no role in the hiring of technicians; did not create, draft or
contribute to the content of any of the independent contractor agreements
utilized by White Communications; and did not sign any such agreements on
behalf of the company”].)
We agree generally with Usher and the federal
cases it cited that, in order to “cause” a violation of the Labor Code, an
individual must have engaged in some affirmative action beyond his or her
status as an owner, officer or director of the corporation. However, that does
not necessarily mean the individual must have had involvement in the day-to-day
operations of the company, nor is it required the individual authored the
challenged employment policies or specifically approved their
implementation. But to be held personally
liable he or she must have had some oversight of the company's operations or
some influence on corporate policy that resulted in Labor Code violations.
(Espinoza v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44, 59 [bold emphasis added].)
Defendant’s
argument that Plaintiff is seeking a double recovery is not persuasive. If a
jury finds more than one Defendant jointly and severally liable, then Plaintiff
can only collect such amount that will make her whole. A jury instruction can ensure that the jury
does not award Plaintiff a double recovery.
To prevent a double recovery, the
amount of compensation actually paid to an injured victim by one joint
tortfeasor is properly set off or deducted from the award obtained from
another. (Citations omitted)
(Jackson v. Yarbray (2009)
179 Cal.App.4th 75, 98.)
However,
Defendant First is only alleged to be CGU’s Executive Director, CGU’s managing
agent, and Plaintiff’s supervisor. (Complaint, ¶ 5.) There are no allegations
that he was engaged in some affirmative action, such as oversight of the
company’s operations or some influence on corporate policy that resulted in
Labor Code violations, such that he may be personally liable. (Espinoza, supra, 74 Cal.App.5th at 59.)
As such, Defendant First’s demurrer to the
eleventh cause of action is SUSTAINED with leave to amend.
3. First
Cause of Action (Whistleblower Retaliation in Violation of Labor Code, §
1102.5; Second Cause of Action (Disability Discrimination in Violation of Gov.
Code, § 12940 et seq.); Third Cause of Action (Retaliation in Violation of Gov.
Code, § 12940 et seq.); Fourth Cause of Action (Hostile Work Environment –
Harassment in Violation of FEHA); Fifth Cause of Action (Failure to Prevent
Discrimination, Harassment and Retaliation in Violation of FEHA); Sixth Cause
of Action (Failure to Engage in the Interactive Process in Violation of Gov.
Code, §§ 12940 et seq.); Seventh Cause of Action (Failure to Provide Reasonable
Accommodation in Violation of Gov. Code, § 12940 et seq.); Eighth Cause of
Action (Discrimination in Violation of California Family Rights Act (CFRA);
Ninth Cause of Action (Retaliation in Violation of California Family Rights Act
(CFRA); Tenth Cause of Action (Wrongful Termination in Violation of Public
Policy) and Fourteenth Cause of Action (Unlawful, Unfair, and Fraudulent
Business Practices in Violation of Bus. & Prof. Code, §§ 17200 et seq.).
Defendant
CGU demurs to these causes of action on the ground that the Court lacks
jurisdiction as to each of these claims which are subject to the exclusive
remedy provided under the Workers’ Compensation Act because they stem from
injuries that occurred in the normal course of the employer-employee
relationship.
Claims
for whistleblower retaliation are barred by workers’ compensation exclusivity. (Light v. Dep't of Parks & Recreation (2017) 14 Cal.App.5th 75, 99. However, claims based
on FEHA violations are not. (Id. at 100-01.) Here, only the first cause
of action is based entirely on whistleblower retaliation. Moreover, because the
first cause of action is based on a whistleblower protection statute, it is a
specific statutory exception to the workers compensation bargain:
[T]he Legislature's enactment of specific statutory
protection for whistleblowing activity, including a civil action for damages incurred from official
retaliatory acts, defines the protected activity as a specific statutory
exception to the provisions of the workers' compensation law; such conduct lies
well outside the compensation bargain.
(Shoemaker v. Myers (1990) 52 Cal.3d 1, 20-23.)
Here, Labor Code, § 1105 provides: “Nothing
in this chapter shall prevent the injured employee from recovering damages from
his employer for injury suffered through a violation of this chapter.” (Labor
Code, § 1105.) This cause of action is not barred by workers’ compensation
exclusivity.
Further,
because the second through tenth cases of action are based upon violations of
FEHA, including the wrongful termination in violation of public policy claim,
they are not barred by workers’ compensation exclusivity. (Light, supra, 14
Cal.App.5th at 100-01.)
The
fourteenth cause of action is based on wage and hour violations, which does not
come within the scope of workers’ compensation.
The
demurrer to the first through tenth and fourteenth causes of action based on
workers’ compensation exclusivity is OVERRULED as to Defendant CGU.
4. Second Cause of Action (Disability
Discrimination in Violation of Gov. Code, § 12940 et seq.); Third Cause of
Action (Retaliation in Violation of Gov. Code, § 12940 et seq.); Fourth Cause
of Action (Hostile Work Environment – Harassment in Violation of FEHA); Fifth
Cause of Action (Failure to Prevent Discrimination, Harassment and Retaliation
in Violation of FEHA); Sixth Cause of Action (Failure to Engage in the
Interactive Process in Violation of Gov. Code, §§ 12940 et seq.); Seventh Cause
of Action (Failure to Provide Reasonable Accommodation in Violation of Gov.
Code, § 12940 et seq.); Eighth Cause of Action (Discrimination in Violation of
California Faily Rights Act (CRFA); Ninth Cause of Action (Retaliation in
Violation of California Family Rights Act (CFRA); and Tenth Cause of Action
(Wrongful Termination in Violation of Public Policy)
Defendant
CGU demurs to these causes of action on the ground that Plaintiff has not
alleged facts indicating that Defendant CGU took any adverse employment actions
against her because of any protected status. Rather, she alleges that she was
retaliated against in response to her whistleblowing activities.
Here,
as to the second cause of action for disability discrimination, Plaintiff
alleges in part that after she notified Defendanet CGU of her diagnosis of
depression and anxiety, Defendant “denied PLAINTIFF a promotion, denied
PLAINTIFF a pay raise, and wrongfully terminated PLAINTIFF’s employment.” (Complaint,
¶¶ 59, 62.) ¶ 31 alleges that Defendant’s failure to promote and/or
provide Plaintiff with increased competition was done in retaliation, in part,
for her requests for reasonable accommodation, i.e., based on her disability.
As
to the third cause of action for retaliation in violation of Gov. Code, § 12940,
see ¶ 71. As to the fourth cause of action for harassment, adverse employment
action is not an element of a harassment claim.
The elements
are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to
unwelcome [ ] harassment; (3) the harassment complained of was based on [the
protected classification]; (4) the harassment complained of was sufficiently
pervasive so as to alter the conditions of employment and create an
abusive working environment; and (5) respondeat superior.
(Fisher v. San Pedro Peninsula Hospital (1989) 214
Cal.App.3d 590, 608.)
As to the fifth cause of action for
failure to prevent discrimination, harassment and retaliation, the second and
third causes of action are sufficient to support this cause of action.
As
to the sixth cause of action for failure to engage in the interactive process
and seventh cause of action for failure to provide reasonable accommodation,
adverse employment action aside from the failures to accommodate a disability is
not an element of these causes of action.
As
to the eighth cause of action for discrimination in violation of the CRFA and
ninth cause of action for retaliation in violation of the CFRA, the alleged
adverse employment action is Plaintiff’s termination in violation for taking
such leave. (Complaint, ¶¶ 125, 135.)
As
to the tenth cause of action, the alleged wrongful termination need not be
based on a protected category. To
state a cause of action for wrongful discharge in violation of public policy
(also known as a “Tameny” claim):
[A] plaintiff must identify a policy that is
“fundamental” and “substantial” in that it is tethered to constitutional or
statutory law, that inures to the benefit of the public rather than to a
personal or proprietary interest of the individual employee, and that is
clearly articulated at the time of discharge. (Citation omitted.) The cases in
which the courts have allowed a tortious claim for wrongful termination in
violation of public policy generally fall into one of four categories, where
the employee is discharged for: (1) refusal to violate a statute; (2)
performing a statutory obligation; (3) exercising a statutory or constitutional
right or privilege; or (4) reporting an alleged violation of a statute of
public significance. (Citation omitted.)
(Sinatra v. Chico Unified School
Dist. (2004) 119 Cal.App.4th 701, 706.)
Defendant
CGU’s demurrer to the second through tenth causes of action on this ground is
not persuasive and is also OVERRULED.
Where
indicated, Plaintiff is given 30 days’ leave to amend.