Judge: Glenn R. Salter, Case: 23-1315361, Date: 2023-08-10 Tentative Ruling
Demurrer
This is an employment action. Plaintiff was an Executive Assistant II. She alleges that she had an underlying medical condition that impacted her eyesight, and that she was discriminated against because of her disability.
The demurrer of the defendant employer to the complaint is OVERRULED with 20 days to answer.
Exhaustion of Administrative Remedies
The defendant argues the complaint fails to allege the exhaustion of administrative remedies because no copy of the complaint filed with the California Civil Rights Department, or the right-to-sue letter, are attached to the complaint.
Exhaustion of remedies is a jurisdictional prerequisite to litigation. Failure to allege facts showing exhaustion renders the complaint subject to demurrer.
Here, the complaint alleges a complaint was filed with the Civil Rights Department and a right-to-sue letter was issued on or about March 24, 2023. Based on this, the plaintiff alleges she has exhausted all applicable administrative remedies. No authority is cited that a plaintiff must attach a copy of the right-to-sue notice to her complaint, and the court is aware of none. These allegations, liberally construed, are sufficient.
The defendant then argues that without a copy of the administrative complaint it cannot tell if the allegations in the administrative complaint track the allegations in this complaint.
However, it may reasonably be inferred that the theories and claims made in the administrative complaint overlap the claims and theories here. The plaintiff affirmatively alleges that she has exhausted her administrative remedies, and that is enough. Should it later be discovered that the two are dissimilar, a dispositive motion may be made.
First Cause of Action—Discrimination
The plaintiff alleges she was fired because she had a medical condition that impacted her eyesight, and because of her unvaccinated status.
Whether it was proper to terminate the plaintiff based on her unvaccinated status does not dispose of the entire cause of action. Further, courts are beginning to recognize the rights of individuals not to be vaccinated, if they choose, and that such reason may not be a legal basis for termination of an employee. Here, moreover, it is alleged that the executive the plaintiff reported to saw an unvaccinated individual as “disabled” and “undesirable.”
The plaintiff also alleges that during the three years prior to her termination she met and exceeded expectations. The allegation establishes (for pleading purposes) a sufficient nexus between her disability and the adverse employment action of termination, whether termination was based on her unvaccinated status or her medical condition that adversely affected her eyesight.
Second Cause of Action—Retaliation
The plaintiff alleges that she engaged in protected activity when she informed the defendant of her disability, provided the defendant with medical documentation confirming her disability and request for accommodation, reported what she reasonably believed to be violations of state and federal laws, including her termination, the defendant failed to engage in the interactive process, and when she reported what she believed to be retaliation, discrimination, and unlawful activity. The allegations are sufficient for pleading purposes.
The court acknowledges that the complaint fails to identify to whom she directed her request for accommodation or her reports of what she believed to be violations of law. But the allegations are otherwise sufficiently specific. Plaintiff will need to disclose this information during discovery, and if she cannot show that she actually reported the things she said she did to the proper individuals then this cause of action might not be viable.
Third Cause of Action—Failure to Accommodate
Fourth Cause of Action—Failure to Engage
The defendant argues the complaint does not allege facts that show she had a known disability, or that show she triggered the duty to engage in the interactive process by requesting an accommodation.
Under FEHA, an employer must make reasonable accommodations for known physical or mental disabilities of an employee, unless it subjects the employer to an undue burden. Further, employers must engage in a timely, good faith interactive process and reasonably accommodate a disabled employee.
Here, the complaint adequately alleges the plaintiff informed the defendant of her disability and provided medical documentation to substantiate it.
Fifth Cause of Action—Wrongful Termination
Sixth Cause of Action—Whistleblower Retaliation
The defendant alleges the complaint does not sufficiently allege she engaged in protected activity under Labor Code section 1102.5. She did not allege what she reported, to whom the report was made, and the causal link between the complaint and defendant’s decision to terminate her.
As with the Second Cause of Action, the allegations are sufficient to state a cause of action.
Motion to Strike
The defendant’s motion to strike punitive damages is GRANTED with 10 days to amend.
To support an award of exemplary damages, a complaint must allege facts showing defendant’s oppression, fraud, or malice. (Code Civ. Proc., § 3294.) Although the plaintiff pleads the facts of termination, nothing in those facts show the requisite malice, oppression, or fraud.
Case Management Conference
The court sets a 5-day jury trial for July 22, 2024, at 9 am, and a Mandatory Settlement Conference for April 26, 2024, at 8:30 am.
The parties are ORDERED to comply with Orange County Local Rule 317.
The court notes that the plaintiff has posted jury fees. Any party that wants a jury trial shall post fees within 30 days or be deemed to have waived a jury trial.
Notice
The defendant shall give notice.