Judge: Gail Killefer, Case: 23STCV05766, Date: 2023-05-25 Tentative Ruling
Case Number: 23STCV05766 Hearing Date: November 8, 2023 Dept: 37
HEARING DATE: Wednesday, November 08, 2023
CASE NUMBER: 23STCV05766
CASE NAME: Mark Alan
Clark. v. City of Los Angeles, et al.
MOVING PARTY: Defendant City of Los Angeles
OPPOSING PARTY: Plaintiff Mark Alan Clark
TRIAL DATE: Not Set
PROOF OF SERVICE: OK
PROCEEDING: Demurrer to First Amended
Complaint
OPPOSITION: 1 November 2023
REPLY: 19
October 2023
TENTATIVE: Defendant City’s demurrer to the FAC is sustained without
leave to amend. The case is dismissed with prejudice. Defendant to give notice.
Background
This action arises from the employment of Mark Alan
Clark (“Plaintiff’) with the Los Angeles Fire Department (“LAFD”), an agency
department of Defendant City of Los Angeles (“City”). Plaintiff worked for LAFD
for nearly 28 years until he retired on March 30, 2022. According to the
Complaint, Plaintiff alleges he worked remotely and requested a religious
exemption as a reasonable accommodation from the City’s August 25, 2021,
Ordinance #187134, which mandated COVID-19 vaccination for all employees
(“Vaccination Ordinance”).
On November 5, 2021, an interactive dialogue was
initiated for Plaintiff’s request for reasonable accommodation. Plaintiff’s
request was submitted to the City Personnel Department on November 16, 2021. According
to the Complaint, City never communicated any updates on his request to
Plaintiff. The Complaint further alleges that due to LAFD official
communications, Plaintiff believed he would be ineligible to continue working
remotely and that his request would be denied. On March 7, 2022, LAFD informed
Plaintiff that he would no longer be allowed to work remotely and directed
Plaintiff to cease telecommuting and return to work in person at the LAFD
Supply and Maintenance Division. The Complaint alleges Plaintiff was forced to
retire early on March 31, 2022.
Plaintiff filed a Complaint, alleging eight causes
of action: (1) suppression of fact and fraud (CC §§1709-1711); (2) failure to
prevent discrimination and retaliation in violation of FEHA; (3) age
discrimination in violation of FEHA; (4) failure to review accommodation
request; (5) failure to accommodate in violation of FEHA; (6) religious
discrimination in violation of FEHA; (7) retaliation; (8) constructive
discharge in violation of public policy; and (9) wrongful termination in
violation of public policy.
On May 25, 2023, the City’s demurrer to the
Complaint was sustained with leave to amend. On June 26, 2023, Plaintiff filed
the operative First Amended Complaint (“FAC”) alleging six causes of action:
(1) retaliation in violation of FEHA; (2) religious creed
discrimination-failure to accommodate in violation of FEHA; (3) failure to
engage in the interactive process in violation of FEHA; (4) failure to prevent
retaliation in violation of FEHA; (5) religious creed discrimination –
disparate impact in violation of FEHA; and (6) constructive discharge
-intolerable conditions.
Defendant City filed a demurrer to the FAC.
Plaintiff opposes. The matter is now before the court.
I. Legal Standard
Where pleadings are defective, a party may raise the defect
by way of a demurrer. (Coyne v. Krempels (1950) 36 Cal.2d 257, 262.) A
demurrer tests the sufficiency of a pleading, and the grounds for a demurrer
must appear on the face of the pleading or from judicially noticeable matters.¿
(CCP § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In
evaluating a demurrer, the court accepts the complainant’s properly pled facts
as true and ignores contentions, deductions, and conclusory statements. (Daar
v. Yellow Cab Co. (1976) 67 Cal.2d 695, 713; Serrano v. Priest (1971)
5 Cal.3d 584, 591.) Moreover, the court does not consider whether a plaintiff
will be able to prove the allegations or the possible difficulty in making such
proof. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d
590, 604.)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 348.)¿ The burden is on the complainant to
show the Court that a pleading can be amended successfully. (Id.)
II. Discussion
Defendant City demurs to the entire FAC on the basis
that the facts pled are insufficient to constitute a cause of action against
the City.
A. Summary
of Allegations in the FAC
The FAC alleges that Plaintiff was forced to retire on March 30,
2022, due to the City’s COVID-19 vaccination mandate (Ordinance # 187134). (FAC
¶ 11.) Before Ordinance # 187134 was passed
on August 18, 2021, Plaintiff worked from home. (FAC ¶¶ 13-16.) While working from home, Plaintiff inquired
about obtaining a religious exemption to the City’s vaccination mandate on
August 24, 2021. He was informed by
Norma Gutierrez that no procedure was yet in place. (FAC ¶¶ 16, 17.)
On September 3, 2021, Plaintiff submitted and received
confirmation that he had submitted his “INTENT TO FILE COVID-19 VACCINATION
[religious] EXEMPTION REQUEST FORM.” (FAC ¶¶ 20, 22.) On September 29, 2021,
Dina Ramirez, Personnel Analyst in the LAFD Personnel Services Section and
LAFD’s designated vaccination mandate exemption liaison, stated that Plaintiff
could submit advance copies of his religious exemption request and that her
office was waiting for direction from the Personnel Department. (FAC ¶ 24.) Ms. Ramirez confirmed Plaintiff’s submission
of advance copies for his religious accommodation request on October 7, 2021. (FAC ¶ 27.)
On September 30, 2021, LAFD issued a memo from the Office of the
Fire Chief, stating that the decision to get vaccinated was a career decision
and the City’s goal was to have a fully vaccinated workforce. (FAC ¶ 25.)
Meanwhile, Plaintiff describes Ordinance # 187134 as mandating that all
employees be vaccinated for COVID-19 or that they request an exemption
for religious or medical reasons and submit regular asymptomatic COVID-19
testing. (FAC ¶ 18.)
On October 18, 2021, Plaintiff discussed his concerns with the
Ordinance with Chief Fields, who gave Plaintiff a draft copy of the City’s last
best final offer regarding consequences for non-compliance with the vaccination
mandate. (FAC ¶ 28.) Plaintiff asserts that he believed he would suffer an
adverse employment action if he did not get vaccinated or approved for a
religious exemption and submit to regular COVID-19 testing. (FAC ¶ 28.)
On October 25, 2023, Plaintiff was informed that the City’s vaccination
requirement exemption portal was open and employees whose exemption was pending
would be subject to weekly COVID-19 testing by the City. (FAC ¶ 31.) This
required Plaintiff to agree to a policy that until the City made an official
determination about his requested accommodation, he was required to agree to
undergo COVID-19 testing twice a week and reimburse the City for those costs. Otherwise, he would be placed off duty
without pay pending a Skelly hearing and be served with a written notice of
proposed separation from City employment for failing to meet a condition of
employment. (FAC ¶ 27.) In December 2021, however, Plaintiff was informed that
the invoices for the Covid tests would be held in abeyance pending the final
determination of the exemption. (FAC ¶ 51.)
On November 3, 2021, Plaintiff learned
that he would no longer be allowed to telecommute full-time. (FAC ¶ 40.) On
November 5, 2021, he was interviewed about his religious beliefs and his
objections to getting vaccinated or tested, and how this conflicted with the
City’s Ordinance. (FAC ¶ 41.) On November 16, 2021, Plaintiff’s requested
accommodation was granted but Plaintiff did not learn this until July 2022,
after his retirement. (FAC ¶¶ 44, 45.)
On December 1, 2021, Plaintiff was told
his accommodation was still pending and that if it was denied, he could appeal
to the Fire Chief. (FAC ¶ 48.) On that same day, Chief Field informed Plaintiff
he would issue a division-wide directive that telecommuting would no longer be
allowed. Chief Field told Plaintiff he
would be allowed to continue to work remotely until his 55th Birthday in March
2022. At that time, Plaintiff could take
early retirement or return to working in person at the Supply and Maintenance
Division. (FAC ¶ 50.) A COVID resurgence on January 3, 2022, led to the
telecommute option being extended and Chief Field allowed Plaintiff to remain
on the payroll even though he was not in compliance with Ordinance # 187134.
(FAC ¶¶ 53, 54)
Plaintiff sent an inquiry regarding his
religious accommodation request on January 7, 2022, but received no reply. He made no other inquiries about the status
of the accommodation request, and he was not informed that his requested
accommodation was granted. Plaintiff retired on March 31, 2022. He did not learn that his accommodation was
approved until July 2022 when he filed a public records request. (FAC ¶¶
61-63.) Plaintiff now asserts that he was forced to retire early because of the
City’s actions.
B. Sixth
Cause of Action-Constructive Discharge
Defendant City asserts that Plaintiff has
not alleged an adverse employment action sufficient to sustain a claim for
retaliation or discrimination. Specifically, the City asserts that Plaintiff
failed to allege “intolerable conditions” to support a claim for constructive
discharge. “In order to establish a constructive discharge, an employee must
plead and prove, by the usual preponderance of the evidence standard, that the
employer either intentionally created or knowingly permitted working conditions
that were so intolerable or aggravated at the time of the employee's
resignation that a reasonable employer would realize that a reasonable person
in the employee's position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251)
Plaintiff asserts that he believed his
noncompliance with Ordinance # 187134 – when his accommodation was pending but
he refused to submit to COVID-19 testing – meant he would suffer an adverse
employment action. Accordingly, he decided
to retire in March 2022 to avoid the consequences. Hence, Plaintiff’s alleged
injury remained speculative because he was allowed to continue telecommuting without
submitting to COVID-19 testing. Plaintiff was never placed off duty without pay. Even if he had been, the City made it clear
that he would be allowed a Skelly hearing prior to termination. (FAC ¶ 37.)
Plaintiff’s fears that he would suffer an adverse employment action never came
to fruition.
While it is true that City failed to
inform Plaintiff that his religious accommodation had been granted, Plaintiff
failed to await official confirmation about the status of his accommodation or
await discipline for failing to comply with Ordinance # 187134. Instead, before
suffering any injury, Plaintiff voluntarily retired rather than face the
possibility of an adverse employment action. Therefore, any harm Plaintiff may have
suffered remained speculative.
On a claim for constructive discharge, “
‘the proper focus is on the working conditions themselves, not on the
plaintiff's subjective reaction to those conditions.’ [Citation.]”
(Simers v. Los Angeles Times Communications, LLC (2018)
18 Cal.App.5th 1248, 1272 [italics original].) Here, Plaintiffs’ subjective
reaction to the possible employment consequences of Ordinance # 187134 was to
seek early retirement. But despite his fears, Plaintiff was never disciplined
for failing to comply with Ordinance # 187134. He was also never told that his
requested accommodation was denied. Moreover, the FAC fails to plead facts to
show that Plaintiff was constructively discharged because working conditions
were so intolerable or aggravated that a reasonable employee in Plaintiff’s
shoes would also have chosen early retirement. Accordingly, the FAC fails to
show that Plaintiff suffered an adverse employment action because he was
constructively discharged.
The demurrer to the sixth cause of action
is sustained without leave to amend.
C. First,
Second, and Fourth Causes of Action – Retaliation, Religious Discrimination due
to Failure to Accommodate, and Failure to Prevent Retaliation
“To state a prima facie case
for¿discrimination¿in violation of the¿FEHA, a plaintiff must establish that
(1) she was a member of a protected class, (2) she was performing competently
in the position she held, (3) she suffered an adverse employment action, and
(4) some other circumstance suggests¿discriminatory¿motive.” (Ortiz v.
Dameron Hospital Assn.¿(2019) 37 Cal.App.5th 568, 577.)
To establish a prima facie case of retaliation
under FEHA, Plaintiff must prove that “(1) he engaged in a protected activity;
(2) the employer subjected the employee to an adverse employment action; and
(3) a causal link existed between the protected activity and the employer’s
action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
FEHA makes it unlawful employment practice “[f]or an employer ... to fail to
take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov.
Code § 12940(k), see Taylor v. City of Los Angeles
Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [noting that retaliation is a form of discrimination
and is actional under Gov. Code section 12940(k)].)
Defendant argues that the FAC fails to allege
that Plaintiff suffered an adverse employment action. Plaintiff’s opposition
states that the adverse employment action was “constructive discharge due to intolerable
conditions.” (Opposition at ¶ 5.) The FAC alleges that “Defendants
intentionally created, imposed, and enforced consequences for noncompliance
with the COVID-19 vaccination and testing requirements of Ordinance # 187134
for which Plaintiff actively sought reasonable accommodation because these
requirements conflicted with Plaintiff’s sincerely held religious beliefs.”
(FAC ¶ 227.) However, as explained above, Plaintiff was never placed off duty
without pay despite failing to comply with Ordinance # 187134. (FAC ¶ 37.)
Plaintiff was allowed to continue working remotely and remain on the payroll.
(FAC ¶ 54.) Defendant never enforced Ordinance # 187134 against Plaintiff. He suffered no consequences from his failure
to comply. Plaintiff fails to show that
the work conditions were so intolerable as to support a claim for constructive
discharge. There are no facts to show that Plaintiff suffered an adverse
employment action due to the City’s enactment and enforcement of Ordinance #
187134.
An adverse employment action requires a
“substantial adverse change in the terms and conditions of the plaintiff's
employment.” (Holmes v. Petrovich Dev. Co., LLC (2011) 191 Cal.App.4th
1047, 1063.) As stated above, the FAC states that Plaintiff continued working remotely and remained
on the payroll. (FAC ¶ 54.) The FAC fails to allege facts that show that the
terms and conditions of Plaintiff’s employment were changed by Ordinance #
187134. Therefore, the FAC fails to plead facts to show that Plaintiff suffered
an adverse employment action. Absent an adverse employment, Plaintiff’s
retaliation and discrimination claims fail.
Moreover,
Plaintiff fails to allege how he suffered religious discrimination since there
are no facts in the FAC to show that Plaintiff was discriminated “in
compensation or in terms, conditions, or privileges of employment” due to his
religion. (Gov. Code, § 1940(a), (l)(1).) Prior to his voluntary retirement,
Plaintiff asserts he never learned if his religious accommodation had been
granted or denied. Therefore, Plaintiff cannot allege that his request for a
religious accommodation was denied. Moreover, the FAC fails to plead facts to
show that Plaintiff suffered an adverse employment action because his requested
religious accommodation was pending.
Consequently,
the demurrer to the first cause and second causes of action are sustained
without leave to amend.
Since the demurrer to the first and
second causes of action is sustained, Plaintiff’s fourth cause of action for
failure to prevent retaliation also fails. “[C]ourts have required a finding of
actual discrimination or harassment under FEHA before a plaintiff may prevail
under section 12940, subdivision (k).” (Dickson v. Burke Williams, Inc.
(2015) 234 Cal.App.4th 1307, 1314; see also Thompson v. City of Monrovia (2010)
186 Cal.App.4th 860, 880; Scotch v. Art Institute of California (2009)
173 Cal.App.4th 986, 1021.)
Therefore, the demurrer to the fourth cause of action is sustained
without leave to amend.
D.
Third Cause of Action – Failure to Engage in the Interactive Process
Under FEHA, an employer must “engage in a
timely, good faith, interactive process with the employee” to determine if a
reasonable accommodation can be provided to an employe with a known physical or
mental disability or known medical condition. (Gov. Code, §
12940(n).) Specifically, section 12940(n) makes it a violation of the FEHA
for an employer “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.” (Ibid. [italics added].)
Here, Plaintiff’s request for a religious
accommodation is not subject to a claim for failure to engage in the
interactive process.
“[A] conflict between the person’s
religious belief or observance and any employment requirement” is actional as a
discrimination claim if the employer discriminate[s] against a person in
compensation or in terms, conditions, or privileges of employment[.]” (Gov.
Code, § 12940(l).) As explained above, because Plaintiff fails to allege that
the terms and conditions of employment were materially changed due to the
enactment or enforcement of Ordinance # 187134, Plaintiff’s discrimination
claim failed.
The demurrer to the third cause of action
is sustained without leave to amend.
E. Fifth
Cause of Action – Religious Creed Discrimination Disparate Impact
“Prohibited discrimination may … be found
on a theory of disparate impact, i.e., that regardless of motive, a facially
neutral employer practice or policy, bearing no manifest relationship to
job requirements, in fact had a disproportionate adverse effect on
members of the protected class.” (Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 354, fn. 20 [internal citations omitted] [italics original].)
In a disparate impact case, “the plaintiff alleges and proves, usually through
statistical disparities, that facially neutral employment practices adopted
without a deliberately discriminatory motive nevertheless have such significant
adverse effects on protected groups that they are ‘in operation ...
functionally equivalent to intentional discrimination.’ [Citation.]” (Harris
v. Civil Service Com. (1998) 65 Cal.App.4th 1356, 1365 [italics original.)
Here, Plaintiff alleges that “Ordinance #
187134 imposed consequences for non-compliance with newly imposed job
requirements and conditions of employment that appeared neutral but had a
disparate and disproportionate adverse effect on employees of faith – and
Plaintiff in particular - whose religious beliefs conflicted with the COVID-19
vaccination and / or testing requirements of Ordinance # 187134 and who are in
a protected group under FEHA on the basis of religion.” (FAC ¶ 199.)
The adverse impact of Ordinance # 187134
that Plaintiff and other similarly situated employees of faith suffered was
that they “were held in prolonged pendency and almost all reasonable
accommodation for sincerely held religious beliefs – including Plaintiff’s
reasonable accommodation – were held in abeyance.” (FAC ¶ 204.) However,
Plaintiff fails to show how this decision being held in abeyance was an adverse
employment action that materially changed or altered the terms and conditions
of employment. Plaintiff does not allege that other employees were forced to
quit or into retirement because the City delayed in informing employees whether
their religious accommodations had been granted or denied. There are no facts
to show that Ordinance # 187134 had a significant adverse effect on religious
employees.
“Under federal title VII, a plaintiff may
establish an unlawful employment practice based on disparate impact in one of
two ways: (1) the plaintiff demonstrates that a defendant uses a particular
employment practice that causes a disparate impact on the basis of a protected
status, and the defendant ‘fails to demonstrate that the challenged practice is
job related for the position in question and consistent with business
necessity’; or (2) the plaintiff demonstrates that there is an alternative
employment practice with less adverse impact, and the defendant “refuses to
adopt such alternative employment practice.’” (CACI 2502 citing 42 U.S.C. §
2000e-2(k)(1)(A).) In interpreting FEHA, California courts
may be guided by federal court decision interpreting Title VII. (See Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 35.)
Here, the FAC fails to allege that
Ordinance # 187134 was not related to Plaintiff’s job and was not a business
necessity or that an alternative employment practice existed with a less
adverse impact but the City refused to adopt it.
The demurrer to the fifth cause of action
is sustained without leave to amend.
Conclusion
Defendant City’s
demurrer to the FAC is sustained without leave to amend. The case is
dismissed with
prejudice. Defendant to give notice.