Judge: Joseph Lipner, Case: 23STCV07072, Date: 2023-10-31 Tentative Ruling
Case Number: 23STCV07072 Hearing Date: October 31, 2023 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
SEPIDEH ZAREI, Plaintiff, v. SAKS & COMPANY LLC; et al., Defendants. |
Case No:
23STCV07072 Hearing Date: October 31, 2023 Calendar Number: 5 |
Defendant Saks & Company LLC (“Saks”) demurs to the
First Amended Complaint (“FAC”) of Plaintiff Sepideh Zarei’s (“Plaintiff”).
Defendant’s demurrer is OVERRULED with respect to
Plaintiff’s claims for hostile work environment and failure to prevent
harassment, discrimination, and retaliation; SUSTAINED WITHOUT LEAVE TO AMEND
with respect to Plaintiff’s wrongful termination in violation of FEHA claim, on
the grounds that it is duplicative of another cause of action, and SUSTAINED
WITH LEAVE TO AMEND with respect to all other claims.
On August 14, 2023, Plaintiff
filed her FAC against Saks and Alicia Garcia (collectively, “Defendants”). Saks
was Plaintiff’s employer from March 2018 to September 3, 2021. Garcia was a
managing agent at Saks. The FAC alleges the following causes of action against
Saks:
(1) National origin discrimination (FEHA);
(2) Hostile work environment (FEHA);
(3) Retaliation (FEHA);
(4) Failure to prevent discrimination, harassment, and
retaliation (FEHA);
(5) Wrongful termination (FEHA);
(6) Wrongful termination in violation of public policy;
(7) Intentional infliction of emotional distress (“IIED”);
and
(8) Violation of Labor Code Section 6310.
The second and seventh causes of action, hostile work
environment and IIED, are also alleged against Garcia.
Plaintiff
alleges that she was mistreated at work on the basis of her national origin,
religion, and race. Plaintiff is a Muslim woman from Iran.
Plaintiff alleges that a number of Plaintiff’s coworkers
harassed her while she worked at Saks. Two coworkers named Kenny made fun of
Plaintiff’s accent and grammar. Garcia witnessed this conduct but did not do
anything about it.
Plaintiff alleges that in late 2019, another coworker named
Alissa started working at Plaintiff’s work site. Alissa would throw boxes in
the stock room for Plaintiff to clean up and told other coworkers that
Plaintiff could not speak properly. This escalated to physical violence where,
on separate occasions, Alissa threw a shoebox at Plaintiff, shoulder-bumped
Plaintiff and caused her to fall, and body-slammed Plaintiff, knocking the wind
out of her.
Plaintiff alleges that she complained continuously about
these incidents from around the beginning of 2019 to the time of her
termination.
On September 3, 2021, Saks terminated Plaintiff’s
employment.
Saks demurred to the FAC on September 14, 2023. Plaintiff
filed an opposition and Saks filed a reply.
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be
amended successfully. (Id.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
A plaintiff alleging discrimination must allege “that (1) [they
were] a member of a protected class, (2) [they were] qualified for the position
[they] sought or [were] performing competently in the position [they] held, (3)
[they] suffered an adverse employment action, such as termination, demotion, or
denial of an available job, and (4) some other circumstance suggests
discriminatory motive.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th
317, 355.) “Evidence of discriminatory motive must be examined carefully in
disability discrimination cases to determine whether there is direct evidence
that the motive for the employer's conduct was related to the employee's
[protected status].” (Brown v. Los
Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1105 [internal
quotations and citations omitted].)
Saks argues that Plaintiff cannot show that her termination
was due to her national origin.
Here, several of Plaintiff’s coworkers made fun of her
accent and one coworker, Alissa, escalated from making fun of Plaintiff’s
speech patterns to multiple incidents of physical violence against Plaintiff,
the latest in April 2021, roughly five months before Plaintiff was terminated. (Complaint
¶¶ 3-8.)
Saks argues that the comments made about Plaintiff’s accent
do not show animus on the basis of national origin because “people of many
different national origins have accents.” (Motion at p. 12.) Nevertheless,
vocal accents are commonly a signifier of national origin, and discrimination
on the basis of accent is forbidden by FEHA’s implementing regulations. (Cal.
Code Regs., tit. 2, § 11027.1, subd. (a)(1) [discrimination based on linguistic
characteristics associated with a national origin group forbidden]; Cal. Code
Regs., tit. 2, § 11028, subd. (b) [discrimination based on accent forbidden].) Serri
v. Santa Clara University (2014) 226 Cal.App.4th 830, 867, cited by Saks,
is distinguishable. There, the president of the university which terminated the
plaintiff commented that he liked her hairstyle better when she blew her curly
hair dry. (Id. at p. 868.) The court
found that the plaintiff had not established animus because people of many
ethnicities and national origins have curly hair. Discrimination on the basis
of accent, unlike hairstyle, is specifically forbidden by statute (Cal. Code
Regs., tit. 2, § 11028, subd. (b)), and therefore goes directly to the question
of animus. Saks’ argument is akin to claiming that comments about an employee’s
skin color do not show racial discrimination because people of all races have
skin colors. Regardless of whether Plaintiff’s coworkers would have made fun of
other accents, they in fact made fun of hers, which is
sufficient to allege animus on the part of those coworkers.
“Notwithstanding the absence of direct evidence of
retaliatory animus, close temporal proximity between a plaintiff's protected
activity and the alleged retaliatory conduct against the plaintiff has been
found sufficient to support a prima facie case of causation.” (Le Mere v. Los Angeles Unified School Dist. (2019)
35 Cal.App.5th 237, 243, citing
Flait v. North American Watch Corp.
(1992) 3 Cal.App.4th 467, 478.) Although a gap of seven months is likely too
long to support a finding of causation (Cornwell
v. Electra Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036), a time
period of five months can be sufficiently proximate. (Holland v. Jefferson Nat. Life Ins. Co. (7th Cir. 1989) 883 F.2d
1307, 1314 [summary judgment on causation reversed where employee laid off by
her supervisor four or five months after complaining to her supervisor of
another employee's sexually offensive remarks]; see also Flait, supra, 3
Cal.App.4th at p. 478 [summary judgment reversed where plaintiff was terminated
several months after complaining, by the same high-level corporate officer he
complained to].) However, in both Holland
and Flait, the plaintiffs were
terminated by the same management officer that they complained to.
The Court finds the reasoning in Holland and Flait
persuasive and applicable to this case. Here, Plaintiff was terminated roughly
five months after her most recent specifically alleged complaint. Her
termination was therefore temporally proximate to her complaints and the
harassment she suffered. However, she does not allege whether the managers
involved knew about her complaints or otherwise showed evidence of animus, so
the same inferential steps taken in Holland
and Flait are incomplete.
Nevertheless, Plaintiff might be able to allege whether those
involved in the decision to fire her knew about Plaintiff’s complaints. Thus,
leave to amend is proper.
The Court therefore SUSTAINS the demurrer with leave to
amend.
To establish a prima facie case of a hostile work
environment, [the plaintiff] must show that (1) [plaintiff] is a member of a
protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the
harassment was based on [plaintiff’s] protected status; (4) the harassment
unreasonably interfered with [plaintiff’s] work performance by creating an
intimidating, hostile, or offensive work environment; and (5) defendants are
liable for the harassment.” (Ortiz v. Dameron Hospital
Assn. (2019) 37 Cal.App.5th 568, 581.)
“[T]he adjudicator’s inquiry should center, dominantly, on
whether the discriminatory conduct has unreasonably interfered with the
plaintiff’s work performance. To show such interference, ‘the plaintiff need
not prove that his or her tangible productivity has declined as a result of the
harassment.’ It suffices to prove that a reasonable person subjected to the
discriminatory conduct would find, as the plaintiff did, that the harassment so
altered working conditions as to ‘make it more difficult to do the job.’” (Harris
v. Forklift Sys. (1993) 510 U.S. 17, 25, conc. opn. of Ginsburg, J.; see
Gov. Code, § 12923, subd. (a) [endorsing this language as reflective of
California law].) A single incident of harassment may be enough to constitute a
hostile work environment if it “unreasonably interfered with the plaintiff’s
work performance or created an intimidating, hostile, or offensive working
environment.”¿ (Gov. Code, § 12923, subd. (b).)¿ The court shall use the
totality of the circumstances to determine whether there exists a hostile work
environment.¿ (Gov. Code, § 12923, subd. (c).)¿
Saks appears to dispute the second and third elements in its
motion.
As discussed above, a number of Plaintiff’s coworkers made
negative comments about her accent and speech patterns. Alissa escalated from
insulting Plaintiff’s speech patterns to creating messes for her to clean up,
throwing shoeboxes at her, knocking her over, and eventually body-slamming her.
Although Defendant cites case law indicating that words alone, even severe
words, do not necessarily create a hostile work environment, “employment law
acknowledges that an isolated incident of harassing conduct may qualify as ‘severe’
when it consists of ‘a physical assault or the threat thereof.’” (Hughes v. Pair (2009) 46 Cal.4th 1035,
1049, quoting Lyle v. Warner Brothers Television Productions (2006) 38
Cal.4th 264, 284.)
Saks cites to Yanowitz
v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056 for the proposition that
acts for which, taken individually, the statute of limitations would have run
should not be considered when evaluating hostile work environment claims.
(Motion at p. 14.) The Yanowitz court
in fact reached the opposite conclusion, explaining that “hostile work
environment claims, … by their very nature involve repeated conduct and thus
cannot be said to occur on any particular day.” (Id. at 1057.) “Because a harassment claim is composed of a series
of separate acts that collectively constitute one unlawful employment practice,
… that it does not matter that some of the component parts fall outside the
statutory time period.” (Ibid.
[internal quotations and citations omitted].) The Court therefore held that the
continuing violation doctrine applies to hostile work environment cases. (Id. at pp. 1058-1059.)
Under the continuing violations doctrine, a court analyzes
whether “the employer's actions were (1) sufficiently similar in
kind—recognizing, as this case illustrates, that similar kinds of unlawful
employer conduct, such as acts of harassment or failures to reasonably
accommodate disability, may take a number of different forms [Citation]; (2)
have occurred with reasonable frequency; (3) and have not acquired a degree of
permanence.” (Yanowitz v. L'Oreal USA, Inc.,
supra, 36 Cal.4th at p. 1059.)
Here, the acts were similar in kind, because they
constituted multiple comments among coworkers about Plaintiff’s accent and
speech patterns, and one employee who made such comments escalated her behavior
against Plaintiff over time. Plaintiff has alleged reasonable frequency, since
the events happened a number of times over roughly three years. In evaluating
the last element, courts consider whether a plaintiff was “on notice that
further conciliatory efforts would be futile.” (Yanowitz v. L'Oreal USA, Inc., supra,
36 Cal.4th at p. 1059.) Here, there
were two supervisors who were unresponsive to Plaintiff’s complaints, but these
facts do not speak to the entire management structure, as discussed above, so
the Court will not find that Plaintiff was on notice.
Thus, it is appropriate for the Court to consider together
the totality of the harassment that Plaintiff faced. As discussed above,
Plaintiff is adequately able to show that she experienced serious harassment on
the basis of her national origin.
The Court therefore OVERRULES the demurrer on this cause of
action.
“To establish a prima facie case of retaliation under the
[Fair Employment and Housing Act] FEHA, a plaintiff must show (1) he or she
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.” (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 878-879,
brackets omitted.) “An ‘adverse employment action,’ which is a critical
component of a retaliation claim, requires a substantial adverse change in the
terms and conditions of the plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th
1047, 1063, quotation marks omitted.)
Actions commenced
under the FEHA must be brought within three years of the date that the unlawful
practice occurred. (Gov. Code, § 12960, subd. (e)(5).) Saks argues that
Plaintiff’s retaliation cause of action is time-barred because she filed the
initial complaint in this action on March 30, 2023, which Saks contends is more
than three years after the relevant event. Saks argues that it is the lodging of
a complaint or report that triggers the statute of limitations for retaliation.
This is incorrect – it is the wrongful
act that causes the statute of limitations to start running. (Gov. Code, §
12960, subd. (e)(5).) The alleged retaliatory act, Plaintiff’s termination,
occurred on September 3, 2021, less than three years before the Complaint was
filed. (FAC ¶¶ 9, 45.) (Plaintiff’s FAC starts renumbering paragraphs from 1
after paragraph 42. The Court cites to these paragraphs using their actual
number, rather than their stated number.) Plaintiff’s retaliation claim is
therefore not time-barred.
Plaintiff alleges
that she was terminated in retaliation for reporting harassment and
retaliation. (FAC ¶¶ 44-45.) Plaintiff reported a number of events, including
Alissa throwing boxes at Plaintiff, saying that Plaintiff could not speak
properly, and body-slamming Plaintiff. (FAC ¶¶ 5-8.) The most recent specific report
that Plaintiff alleges was after the body-slamming incident which occurred in
April 2021, although Plaintiff alleges that she complained up until the date of
her termination.
Plaintiff’s
allegations of retaliation state only that “Defendants terminated Plaintiff’s
employment on September 3, 2021, due to her national origin and religion, and
for reporting of harassment and retaliation regarding the same.” (Complaint ¶
45.) As discussed above, Plaintiff may be able to demonstrate causation under a
temporal proximity theory but does not allege facts concerning whether members
of management knew about her complaints.
Because Plaintiff’s
latest complaint was within five months of her termination and because
Plaintiff may be able to allege that her supervisors were continuously
unresponsive to her harassment complaints, Plaintiff may be able to allege
facts connecting the dots and showing that her termination was retaliatory –
but more is necessary.
The Court therefore
SUSTAINS the demurrer to this cause of action with leave to amend.
The elements of a cause of action for failure to prevent
harassment or retaliation are: (1) actionable discrimination or harassment by
employees or nonemployees; (2) defendant’s legal duty of care toward plaintiff
(i.e., defendant is the plaintiff’s employer); (3) breach of that duty (i.e.,
failure to take all reasonable steps necessary to prevent discrimination and
harassment from occurring); (4) legal causation; and (5) damages to plaintiff.
(Trujillo v. North County Transit
District (1998) 63 Cal.App.4th 280, 287, 289; Bradley v. Department of Corrections & Rehabilitation (2008)
158 Cal.App.4th 1612, 1630; Gov. Code, § 12940.)
Sak’s only argument on this cause of action is that it must
fail because it is derivative of Plaintiff’s harassment claims. As discussed
above related to Plaintiff’s hostile work environment cause of action,
Plaintiff has adequately alleged that she suffered harassment by other
employees on the basis of her national origin.
The Court therefore OVERRULES the demurrer on this cause of
action.
The
basis of Plaintiff’s claim for wrongful termination in violation of FEHA is
that her reports of the harassment she suffered were the motivating reason for
her termination. This is a FEHA retaliation claim – duplicative of Plaintiff’s
other FEHA retaliation claim discussed above.
The
Court therefore SUSTAINS the demurrer on this cause of action WITHOUT LEAVE TO
AMEND.
“The elements of a claim for wrongful discharge in violation
of public policy are (1) an employer-employee relationship, (2) the employer
terminated the plaintiff’s employment, (3) the termination was substantially
motivated by a violation of public policy, and (4) the discharge caused the
plaintiff harm. It is well established that a termination premised on an
employee’s refusal to violate either a statute or an administrative regulation
may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical
Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)
Defendant’s
only argument on this cause of action is that it fails for the same reason that
Plaintiff’s discrimination, harassment, and retaliation claims fail. The Court
agrees, in that the same weakness in Plaintiff’s discrimination and retaliation
claims – the lack of sufficient allegations concerning causation – appears here
too, for substantially the same reasons discussed above.
The
Court therefore SUSTAINS the demurrer with leave to amend.
“The elements of a prima facie case
for the tort of intentional infliction of emotional distress are: (1) extreme
and outrageous conduct by the defendant with the intention of causing, or
reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff’s suffering severe or extreme emotional distress; and (3) actual and
proximate causation of the emotional distress by the defendant’s outrageous
conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and
ellipses omitted.)
Saks argues that the Worker’s
Compensation Act categorically preempts IIED claims by employees. This is only partially
true. “So long as the basic conditions of compensation are otherwise satisfied,
and the employer's conduct neither contravenes fundamental public policy nor
exceeds the risks inherent in the employment relationship, an employee's
emotional distress injuries are subsumed under the exclusive remedy provisions
of workers' compensation.” (Livitsanos v.
Superior Court (1992) 2 Cal.4th 744, 754). However, where an employer’s
actions do contravene fundamental public policy, California courts recognize that
a traditional tort remedy is appropriate. (Tameny
v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177.)
For the purposes of respondeat
superior, an act is within the scope of employment, and therefore imputable
onto the employer, if the employment predictably creates the risk that
employees will commit intentional torts of the type for which liability is
sought. (Samantha B. v. Aurora Vista Del
Mar, LLC (2022) 77 Cal.App.5th 85, 107.) As an alternative, an employer may
be liable for an intentional tort where the employer ratifies the originally
unauthorized tort. (Id. at 109.) The
failure to discharge an employee who has committed misconduct may be evidence
of ratification. (Baptist v. Robinson
(2006) 143 Cal.App.4th 151, 169 [internal citation omitted].
Here, Plaintiff’s allegations of
ratification are conclusory, stating only that Saks ratified its employees’
harassment of her with little in the way of supporting facts. As discussed
above the facts surrounding Plaintiff’s reports of misconduct are unclear as to
what Plaintiff reported, and to whom. The allegations are similarly lacking in
terms of the substance of Saks’ management’s responses to Plaintiff’s
complaints. However, it is possible that Plaintiff could allege facts showing
ratification, especially if Saks failed to discharge Alissa.
The Court therefore SUSTAINS the
demurrer with leave to amend.
Labor Code section 6310, subdivision (b), provides that:
“Any
employee who is discharged, threatened with discharge, … or in any other manner
discriminated against in the terms and conditions of employment
by their employer because the employee has made a bona fide oral or
written complaint to ... their employer,
or their representative, of unsafe working conditions, or work
practices, in their employment or place of employment, … shall be
entitled to reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer.
(Lab.
Code, § 6310, subd. (b).)
Saks
argues that Plaintiff has not alleged a complaint that is protected under section
6310. Labor Code section 6310 is meant to address issues of physical safety and
working conditions – the purview of the California Division of Occupational
Safety and Health (“Cal/OSHA”). Although Plaintiff’s alleged complaints were
regarding harassment and discrimination on the basis of her national origin,
the events underlying these complaints included physical violence against
Plaintiff in the workplace, including when a coworker threw boxes at her and
body-slammed her. Thus, the subject matter makes Plaintiff’s complaints
protectable.
However,
as discussed with regards to Plaintiff’s retaliation cause of action, Plaintiff
has not sufficiently alleged facts showing that her termination was causally
connected to the complaints.
The
Court therefore SUSTAINS the demurrer to this cause of action with leave to
amend.
For the reasons stated in this order, Defendant’s demurrer
is OVERRULED with respect to Plaintiff’s claims for hostile work environment
and failure to prevent harassment, discrimination, and retaliation; SUSTAINED
WITHOUT LEAVE TO AMEND with respect to Plaintiff’s wrongful termination in violation
of FEHA claim, and SUSTAINED WITH LEAVE TO AMEND with respect to all other
claims.