Judge: Holly J. Fujie, Case: 22STCV16192, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCV16192    Hearing Date: February 16, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Deloitte Consulting LLP (“Moving Defendant”)

RESPONDING PARTY: Plaintiff

The Court has considered the moving, opposition and reply papers.

BACKGROUND

            This action arises out of an employment relationship.  The currently operative second amended complaint (the “SAC”) alleges: (1) employment discrimination in violation of the Fair Employment and Housing Act (FEHA”); (2) failure to accommodate in violation of FEHA; (3) failure to engage in a timely and good-faith interactive process in violation of FEHA; (4) harassment in violation of FEHA; (5) retaliation in violation of FEHA; (6) failure to prevent/remedy discrimination, harassment and/or retaliation in violation of FEHA; (7) wrongful discharge in violation of public policy; and (8) intentional infliction of emotional distress.

In relevant part, the SAC alleges: Plaintiff began working for Moving Defendant in 2018.  (SAC ¶ 1.)  In around July 2019, Plaintiff was hospitalized for multiple days as a result of a medical condition called ITP.  (SAC ¶ 15.)  Plaintiff also has several slipped discs in his spine and was diagnosed with multiple sclerosis in 2012, which he informed Moving Defendant about during his employment.  (Id.)  The aforementioned conditions limit Plaintiff’s ability to work by causing him to be occasionally absent.  (See Complaint ¶¶ 33-34.)   

When Plaintiff returned to work, Moving Defendant removed him from the projects he had been handling before he requested medical leave.  (SAC ¶ 16.)  Although Plaintiff had exceptional performance reviews, Moving Defendant did not assign him to another project until November 2019.  (Id.)  As a result, Plaintiff lodged a complaint with Moving Defendant’s human resources (“HR”) department.  (SAC ¶ 17.)  When the supervisors who removed Plaintiff from his former projects learned of the investigation, their attitudes towards Plaintiff further deteriorated, and as a result, Plaintiff was unable to participate in several projects and jobs.  (Id.)  In addition, Plaintiff’s supervisors began “bad mouthing” him when he returned to work from the hospital.  (SAC ¶ 64.)

In around March 2020, Plaintiff was transferred and given the title of Senior Consultant in the Finance and Enterprise Performance Group in Orange County and Los Angeles.  (SAC ¶ 18.)  Plaintiff requested a regional relocation as an accommodation for his condition.  (Id.)  Despite the transfer, Plaintiff reported to the same leadership team and continued to be passed over when new projects arose.  (See SAC ¶¶ 19-20.)  As a result, Plaintiff diligently pursued projects and was eventually approved to begin on a project that was overseen by a different leadership team.  (See SAC ¶ 21.)  Although Plaintiff received a positive evaluation after beginning on this new project, he was terminated weeks after beginning the project.  (SAC ¶ 22.)

Moving Defendant filed a demurrer (the “Demurrer”) to the second, third, fourth, fifth, and eighth causes of action on the grounds that the SAC fails to allege facts sufficient to state a cause of action with respect to each claim.  Moving Defendant also filed a motion to strike (the “Motion”) portions of the SAC related to allegations concerning punitive damages.

DEMURRER

Meet and Confer

The meet and confer requirement has been met for both the Demurrer and Motion.

Legal Standard

A demurrer tests the sufficiency of a complaint as a matter of law.  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)  The court accepts as true all material factual allegations and affords them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.  (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.)  With respect to a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.  (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.)  A demurrer will be sustained without leave to amend if there exists no reasonable possibility that the defect can be cured by amendment.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

Second and Third Causes of Action: Reasonable Accommodation/Interactive Process

FEHA prohibits an employer from failing to make reasonable accommodations for the known physical and mental disability of an employee.  (Gov. Code § 12940, subd. (m).)  The elements of a failure to accommodate claim are: (1) the plaintiff has a disability under FEHA; (2) the plaintiff is qualified to perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff's disability.  (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 971.)  A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.  (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010.)  Two principles underlie a cause of action for failure to provide a reasonable accommodation: (1) first, the employee must request an accommodation; and (2) second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.  (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54.)

FEHA imposes an additional duty on the employer to engage in a timely, good faith, interactive process with the employee to determine effective reasonable accommodations.  (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)  An employer's failure to engage in this process is a separate FEHA violation.  (Id.)

FEHA broadly defines physical disabilities.  Under FEHA, a “physical disability” includes, but is not limited to, all of the following: (1) having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following: (A) affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine; and (B) limits a major life activity.  (Gov. Code § 1296, subd. (m)(1).  A physiological disease limits a major life activity if it makes the achievement of the major life activity difficult.  (See id.)  “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.  (Id.) 

Moving Defendant first argues that the SAC does not sufficiently allege that Plaintiff was disabled within the meaning of FEHA.  The Court disagrees.  The SAC alleges that Plaintiff had numerous conditions as to which he had informed his employer.  (See, e.g., SAC ¶ 45.)  The SAC also alleges that Plaintiff’s conditions impaired his ability to work.  Working constitutes a “major life activity” under FEHA.  Plaintiff has therefore sufficiently alleged that he had a disability that fell within the protections of FEHA. 

With respect to the remainder of the claims’ elements, the SAC alleges that Plaintiff was removed from his projects during his hospitalization and that when he returned to work, he informed Moving Defendant that he would need some time off and requested a plan to determine a way to accommodate his restrictions so that he could be placed on new projects.  (See SAC ¶¶ 54-55.)  Despite this request, Moving Defendant did not provide an accommodation or otherwise discuss the issue with Plaintiff.  (See SAC ¶¶ 45-46, 55.)  Liberally construing the allegations in Plaintiff’s favor, the Court finds that the SAC sufficiently alleges the second and third causes of action.  The Court therefore OVERRULES the Demurrer to these claims. 

Fourth Cause of Action: Harassment

Employers may not harass an employee because of race, religious creed, color, national origin, ancestry, physical¿disability, mental¿disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.  (Gov. Code § 12940,¿subd. (j)(1).) The elements of a cause of action for harassment under FEHA are: (1) plaintiff belongs to a protected group; (2) plaintiff was subjected to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (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.  (Jones v. Department of Corrections & Rehabilitation¿(2007) 152 Cal.App.4th 1367, 1377.)

Whether the conduct complained of is sufficiently pervasive must be determined “from the totality of the circumstances.” ¿(Fisher v. San Pedro Peninsula Hospital¿(1989) 214 Cal.App.3d 590, 609.)  The plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.  (Id.¿at 609-10.)¿ Harassment typically does not include conduct necessary for management of the employer’s business or performance of the supervisory employee’s job.  (Reno v. Baird¿(1998) 18 Cal.4th 640, 647.)  Rather, harassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification for meanness or bigotry, or for other personal motives.  (Id.)¿  Some¿official employment actions done in furtherance of a supervisor’s managerial role, however, can also have a secondary effect of communicating a hostile message.  (Roby v. McKesson (2009) 47 Cal.4th 686, 709.)  This occurs when the actions establish a widespread pattern of bias.  (Id.)  Accordingly, commonly necessary personnel management actions can support a¿harassment action if the evidence of biased personnel management actions is relevant to prove the communication of a hostile message.  (See id.) 

Plaintiff’s harassment claim is based largely on allegedly discriminatory personnel decisions, such as removing Plaintiff from projects, not reassigning him to new projects, terminating his employment.  The SAC additionally alleges that Plaintiff’s supervisors made disparaging comments about him.  (SAC ¶ 64.)  This sole allegation, however, is insufficiently detailed to show that his supervisors’ conduct was so frequent or severe that it had a secondary effect of communicating a hostile message, or otherwise created an intimidating and hostile work environment.  (See Roby v. McKesson,¿supra, 47 Cal.4th at 709; Gov. Code § 12940(j).)  The allegation is also insufficiently specific to show that the conduct was based on Plaintiff’s disability.  The Court therefore SUSTAINS the Demurrer to the fourth cause of action with 20 days leave to amend.  Should Plaintiff file an amended pleading that fails to sufficiently allege a harassment cause of action, the Court will consider sustaining an ensuing demurrer to the claim without granting further leave to amend.

Fifth Cause of Action: Retaliation

The elements of a cause of action for a FEHA retaliation claim are: (1) the employee's engagement in a protected activity; (2) retaliatory animus on the part of the employer; (3) an adverse action by the employer; (4) a causal link between the retaliatory animus and the adverse action; (5) damages; and (6) causation.  (Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105.)

            The SAC alleges that Plaintiff requested an accommodation that would allow him to be assigned to new projects, that Plaintiff was not assigned any new projects until at least March 2020 when he was transferred to a different office.  The SAC also alleges that Plaintiff’s supervisors were aware of and unhappy about Plaintiff’s complaints, that they continued to exclude him from working on new projects, and that they terminated Plaintiff after he was assigned to a new project and received positive reviews.  (See SAC ¶¶ 17, 74.)  The Court finds that these allegations are sufficient to state a FEHA retaliation claim.  The Court therefore OVERRULES the Demurrer to the fifth cause of action.

Eighth Cause of Action: Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, a plaintiff must allege: (1) the defendant’s extreme and outrageous behavior with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.  (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)  Conduct is considered extreme and outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.  (Id.)  Behavior may be considered outrageous if a defendant: (1) abuses a position that gives him power over a plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through emotional distress; or (3) acts intentionally or unreasonably when the conduct is likely to result in mental distress and illness.  (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.)  A retaliatory motive alone is insufficient to sustain a claim for intentional infliction of emotional distress.  (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101-02.)   

Like the harassment cause of action, the intentional infliction of emotional distress cause of action is based on allegedly wrongful management decisions.  Without more, these actions are insufficient to allege extreme and outrageous behavior, even if an improper motivation is alleged.  (See Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.)  The Court therefore SUSTAINS the Demurrer to the eighth cause of action with 20 days leave to amend.  As with the harassment claim, if Plaintiff chooses to file an amended pleading that is successfully challenged by demurrer, the Court will consider denying Plaintiff further leave to amend.

MOTION TO STRIKE

Legal Standard

A motion to strike either: (1) strikes any irrelevant, false or improper matter inserted in any pleading; or (2) strikes any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.  (CCP § 436.)

Punitive Damages

Civil Code section 3294, subdivision (a) authorizes punitive damages in non-contract cases where the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code § 3294, subd. (a).)  Punitive damages require more than the mere commission of a tort.  (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)  Specific facts must be pled in support of punitive damages.  (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.)  For corporate or other large organizations, the malicious conduct must have been performed by an agent, employed in a managerial capacity acting in the scope of employment, or ratified or approved by a managerial agent of the organization.  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723.)  The allegations of the complaint must show that the corporate defendant knew or possessed information indicating that its agent was engaged in harmful activities towards plaintiffs or ratified the agent’s conduct.  (Id. at 726.)  Furthermore, there must be allegations that the managing agent was acting as a corporate representative or in a professional capacity.  (Id. at 724.)  Managing agents include only those corporate employees who exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.  (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.)  Conversely, supervisors who have no discretionary authority over decisions that ultimately determine corporate policy would not be considered managing agents even though they may have the ability to hire or fire other employees.  (See id.) 

The SAC includes the identities of Plaintiff’s supervisors but does not include specific allegations to support that any of them constitute “managing agents” or specific facts suggesting that their conduct was ratified by Moving Defendant institutionally.  The Court additionally notes that SAC’s requests for punitive damages are also connected to the insufficiently alleged claims for harassment and intentional infliction of emotional distress, discussed above.  The Court therefore GRANTS the Motion with 20 days leave to amend.  As with the insufficiently alleged causes of action discussed above, if Plaintiff files an amended pleading and the punitive damages allegations are later successfully challenged by a motion to strike, the Court will consider denying further leave to amend. 

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 16th day of February 2023