Judge: Daniel S. Murphy, Case: 22STCV19501, Date: 2022-10-10 Tentative Ruling

Case Number: 22STCV19501    Hearing Date: October 10, 2022    Dept: 32

BACKGROUND

            On June 14, 2022, Plaintiff Beverly Rouse filed this employment discrimination action against Defendants El Camino Community College District and Arthur Leible. The operative First Amended Complaint was filed on August 22, 2022. The FAC alleges eight causes of action arising under FEHA for discrimination, harassment, failure to prevent, and failure to accommodate.

            Plaintiff is an African-American female who works for Defendant as an administrative assistant. Plaintiff alleges that her supervisor, Arthur Leible, harassed and discriminated against her based on her race and gender. Plaintiff further alleges that she was denied the opportunity to telework as a disability accommodation and discriminated against based on her disability and medical condition.

            On September 12, 2022, Defendant El Camino Community College District filed the instant demurrer to the first through fourth, sixth, and ninth causes of action (discrimination, retaliation, and failure to engage in interactive process).  

LEGAL STANDARD

 A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) A complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Pitts Decl. ¶¶ 4-6.)

DISCUSSION

I. Discrimination

Government Code section 12940, subdivision (a) prohibits an employer from discriminating against an employee based on a protected characteristic. In order to establish a claim of discrimination, a plaintiff must prove: (1) they are in a protected class; (2) an adverse employment action was taken against them; (3) at the time of the adverse action they were satisfactorily performing their job; and (4) some other circumstance suggesting discriminatory motive. (Guz v. Bechtel (2000) 24 Cal.4th 317, 355.)

            Plaintiff alleges discrimination based on race, sex/gender, disability, and medical condition. Defendant argues that there is no adverse employment action or causal connection, and that the cause of action for medical condition discrimination duplicates the one for disability discrimination.

            a. Adverse Employment Action

            An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) Plaintiff alleges that “Mr. Leible would often make specific work demands on African American employees that he would not make on other employees who were not African American.” (FAC ¶ 32.) Furthermore, “Mr. Leible would not include Ms. Rouse in communications that required her attention as his direct administrative assistant, or he would direct Ms. Rouse’s assistant to do work that only Ms. Rouse was authorized to perform.” (Id., ¶ 33.) “Additionally, Mr. Leible denied Ms. Rouse to perform a job assignment at the college’s music studio, an assignment he had previously approved.” (Id., ¶ 60.) These allegations adequately establish a course of conduct that “materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (See Holmes, supra, 191 Cal.App.4th at p. 1063.)

            b. Causation

Defendant takes issue with Plaintiff’s allegations that Defendant’s actions were motivated by her race, gender, disability, and medical condition, contending that they are unsupported by facts connecting her protected characteristics to the adverse actions. However, at the pleading stage, the allegations are sufficient to place Defendant on notice of the issues. (See Ludgate, supra, 82 Cal.App.4th at p. 608.) Plaintiff is not required to plead the evidentiary facts that would prove the discrimination claims. Furthermore, Plaintiff alleges that Leible made racist comments and improperly discussed Plaintiff’s disability, leading to a reasonable inference of bias. (FAC ¶¶ 32-37, 38-42.)  

            c. Disability/Medical Condition

Defendant contends that the disability discrimination and medical discrimination claims are duplicative because they arise from the same nucleus of acts. That does not preclude Plaintiff from asserting both claims. “A plaintiff may plead cumulative or inconsistent causes of action.” (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565.) Furthermore, FEHA defines “disability” and “medical condition” differently. (See Gov. Code, § 12926(i), (j), (m).) Plaintiff has pled both a disability and medical condition. (FAC ¶ 75.)

Defendant points out that the documentation Plaintiff provided to Defendant admittedly stated that she “did not have a physical or mental impairment that prevented her from performing her job function.” (FAC ¶ 81.) However, FEHA does not define disability purely based on ability to perform job functions. (See Gov. Code, § 12926(j), (m).) The existence of that paperwork does not preclude a finding that Plaintiff suffers from a disability as defined by FEHA. The allegation also states that Defendant was put on notice of Plaintiff’s various disorders and underlying health issues. (FAC ¶ 81.)

The demurrer is OVERRULED as to the first through fourth causes of action.

II. Retaliation

Government Code section 12940, subdivision (h) makes it unlawful for an employer to retaliate against an employee who opposes harassment or discrimination. To establish a prima facie case of retaliation under the FEHA, a plaintiff must show that he: (1) engaged in a protected activity; (2) the employer subjected him to an adverse employment action, and (3) a causal link exists between the protected activity and the employer’s action. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant argues again that Plaintiff has not suffered an adverse employment action. This argument fails for the same reasons set forth above. Plaintiff alleges that one day after Plaintiff complained to Leible about his comments regarding the LGBTQ community, Leible excluded Plaintiff from work-related communications, which impacted her ability to serve as his administrative assistant. (FAC ¶¶ 57-58.) After Plaintiff complained to HR, Leible denied Plaintiff a job assignment that he had previously approved. (Id., ¶ 60.) This sufficiently establishes a reasonable inference that Defendant retaliated against Plaintiff.

The demurrer is OVERRULED as to the sixth cause of action.

III. Failure to Engage in Interactive Process

Government Code section 12940, subdivision (n) makes it unlawful for “[f]or an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”

Defendant argues that the complaint admits Defendant engaged with Plaintiff and granted her an accommodation. (See FAC ¶¶ 81, 83, 88.) However, those allegations do not admit that Defendant adequately engaged with Plaintiff, just because they acknowledge that Plaintiff spoke with the ADA compliance officer and her supervisor. The allegations state that Defendant rejected Plaintiff’s requests to work remotely fulltime even though Plaintiff provided documentation of her health conditions, and that other employees were allowed to work remotely fulltime without having to present evidence. Plaintiff alleges that after she requested an accommodation, Defendant refused to work with her to determine a reasonable accommodation. (Id., ¶¶ 195-197.) Plaintiff denies that Defendant provided her an adequate accommodation. This sufficiently establishes the failure to engage.

The demurrer is OVERRULED as to the ninth cause of action.