Judge: Jon R. Takasugi, Case: 22STCV10433, Date: 2022-12-09 Tentative Ruling

Case Number: 22STCV10433    Hearing Date: December 9, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s demurrer is OVERRULED as to the first cause of action. Defendant’s demurrer is SUSTAINED, WITHOUT LEAVE TO AMEND, as to the second, third, and fourth causes of action.

Plaintiff’s Complaint is dismissed with prejudice as to the second, third, and fourth causes of action.

            On 3/25/2022, Plaintiff Laurie Lashomb filed suit against the TJX Companies. On 9/30/2022, Plaintiff filed a first amended complaint (FAC) alleging: (1) disability discrimination; (2) failure to accommodate; (3) failure to engage in interactive process; and (4) age discrimination.

            Now, Defendant demurs to Plaintiff’s Complaint.

Discussion

            Defendant argues that Plaintiff cannot state a claim because her action (1) is time-barred; (2) equitable tolling does not apply; and, (3) Plaintiff did not timely exhaust her administrative remedies.

            As to the first contention, Defendant notes that this Complaint comes nearly five years after Plaintiff received a right-to-sue notice from the Department of Fair Employment and Housing (DFEH.)

            As to the second contention, Defendant argues that Plaintiff’s worker’s compensation claim and 132a Petition cannot equitably toll her FEHA causes of action because they are based on “completely different wrongs and Defendant has been substantially prejudiced by Plaintiff’s unreasonable delay.” (1: 8-9.)

            As to the third contention, Defendant argues that even assuming equitable tolling applied, Plaintiff’s second and third causes of action would still be barred because she failed to exhaust administrative remedies.

            The Court agrees that Plaintiff’s claim appears to be time-barred on its face. Here, Plaintiff was terminated on 6/23/2017. (Compl., ¶¶ 12-13.) The DFEH issued Plaintiff a right-to-sue letter on 7/28/2017. (RJN, ¶ 3, Ex. C.) Thus, Plaintiff had until 7/28/2018 to file her FEHA claims in civil court, yet did not file this claim until 3/25/2022.

            However, the Court disagrees that Plaintiff has not alleged facts which could show that equitable tolling applies here. Equitable tolling is a “narrow remedy that applies to toll statutes of limitations only ‘occasionally and in special situations.’” (Saint Francis Mem'l Hosp. v. State Dep't of Pub. Health (2020) 9 Cal. 5th 710, 724.)  Application of the doctrine of equitable tolling requires: (1) timely notice; (2) lack of prejudice; and (3) reasonable and good faith conduct on the part of the plaintiff. (Long v. Forty Niners Football (2019) 33 Cal. App. 5th 550, 555.)

            Here, Defendant argues that Plaintiff’s worker’s compensation claim is based on entirely differently wrongs from those alleged here, and did not provide notice of any disability discrimination claims. However, Plaintiff’s worker’s compensation complaint includes the following allegations:

-         Defendant knew of her condition and could have offered some reasonable accommodations which Petitioner requested during her continuing recovery. (Workers Comp. Complaint ¶ 7.)

-         Defendant terminated Applicant on June 23, 2017 on a false pretext or grounds. Defendant claimed that she was unemployable and was taking too long to recover from her work related injuries. Petitioner was ready and willing to go back to work with reasonable temporary accommodations while she recovered from her injuries and employer was not willing to allow her to return to work and accommodate her. This was a false reason or a pretext, and the real reason Applicant was terminated was because she was taking too long to recover and she had filed a workers compensation claim. (Workers Comp. Complaint ¶ 7.)

(RJN, Exh. B.)

As such, while the workers compensation claim and 132a claim make no mention of age discrimination, Defendant was clearly on notice that Plaintiff alleged that Defendant failed to engage in the interactive process to determine reasonable accommodations that would allow her to return to work, and that rather than accommodate her, she was pretextually terminated due to her disability. This makes the facts here materially distinguishable from the unreported federal cases cited by Defendant in support. It also means that the Court cannot conclude that the workers compensation claim and 132a petition were based on entirely different wrongs than that here, so as to determine at the pleading stage that equitable tolling could not apply. This is especially true given that substantial prejudice involves a factual determination which may not be properly made at the pleading stage.

However, the Court agrees that Plaintiff has failed to exhaust her administrative remedies as to the second and third causes of action.

            Here, Plaintiff’s DFEH claim characterizes the adverse actions suffered by Plaintiff as:

On or around June 23, 2017, complainant alleges that respondent took the following adverse actions against complainant: Discrimination, Retaliation Terminated.  Complainant believes respondent committed these actions because of their: Age- 40 and over, Disability, Engagement in Protected Activity, Family Care or Medical Leave, Marital Status, Medical Condition – Including cancer or cancer related medical condition or genetic characteristics, Sex – Gender, Sexual Orientation.

(RJN, Exh. C.)

            Plaintiff’s DFEH claim provides the following substantiative details:

On June 23, 2017, while I was out on a Protected Medical Leave and on an accepted Workman's Comp claim, TJ Maxx fired me. I believe that my termination was due to my being a Gay Woman, over 40, married to another woman that was previously terminated by the same corporation. My disability has not been questioned (the Workers Comp claim is active and accepted) but TJ Maxx, and Sharon Bishop (not the Regional HR but at the time I went on leave she was my boss) have retaliated against me because of my work-related injuries.

            (RJN, Exh. C.)

As such, the DFEH charge is silent on claims for failure to provide a reasonable accommodation, and failure to engage in the interactive process. The scope of the written administrative charge defines the permissible scope of the subsequent civil action. Therefore, allegations in the civil complaint that fall outside the scope of the administrative charge are barred for failure to exhaust. (Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1121-23; Okoli v. Lockheed Tech. Operations Co. (1995)  36 Cal. App. 4th 1607, 1617 (to exhaust her administrative remedy as to a particular act made unlawful by the FEHA, “the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts”)

In sum, taken together, all but Plaintiff’s first cause of action appear barred on their face:

 As for the second and third causes of action, Plaintiff’s DFEH charge is silent on claims for failure to provide a reasonable accommodation and failure to engage in the interactive process. As such, even assuming Plaintiff’s workers compensation claim and 132a petition equitably tolled the statute of limitations, Plaintiff still failed to exhaust her administrative remedies by failing to include these claims in her administrative charge. (Yurick, supra, 209 Cal.App.3d at p. 1121-23.) Plaintiff did not submit any authority that could show that Defendant’s notice of these claims in the workers compensation claim and 132a context was sufficient to satisfy Plaintiff’s notice requirements in the DFEH context.

As for the fourth cause of action, while Plaintiff’s DFEH charge included the age discrimination claim, Plaintiff’s workers compensation claim and 132a petition made no mention of this claim. As such, Plaintiff has not alleged facts which could show that Defendant could have, or should have, been on notice of this claim. Given this lack of notice, Plaintiff has not alleged facts which could show that equitable tolling could apply to this cause of action. As such, Plaintiff had until 7/28/2018 to file this claim. Plaintiff did not file this claim until 3/25/2022, and thus it appears to be barred on its face.

            This leaves only the first cause of action for disability discrimination. For the reasons set forth above, the Court concludes that Plaintiff’s workers compensation claim and 132a petition could have put Defendant on notice of this claim. Moreover, given that the workers compensation claim and the 132a claim were not resolved until 10/24/22 and 11/2/2022 respectively, Plaintiff has also alleged facts which could show that she did not act in bad faith by delaying, and that Defendant was not prejudiced by the delay. As such, Plaintiff has alleged facts which could show that equitable tolling apples to this claim. (Long, supra, 33 Cal. App. 5th at p. 555.) Given that Plaintiff included an allegation of disability discrimination in her DFEH charge, she has also exhausted her administrative remedies with respect to this claim. As a result, at the pleading stage, this claim does not appear to be barred on its a face.

Based on the foregoing, Defendant’s demurrer is sustained, without leave to amend, as to the second, third, and fourth causes of action. Defendant’s demurrer is overruled as to the first cause of action.

It is so ordered.

Dated:  December    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.