Judge Kerry Bensinger, Case Number: 24STCV09111, Date: 2024-10-18 Tentative Ruling

Plaintiff Anthony Espino (Espino or Plaintiff) began his employment at Ronald Reagan UCLA Medical Center (UCLA Medical Center) as a registered nurse in September 2010. In March of 2015, Espino fell at work and sustained an injury to his shoulder. Espino reported the injury to his employer and was seen by The Regents’ in-network medical provider. Espino was given a doctor’s note placing him on light duty. Espino gave the note to his supervisor, Jasmine Briones (Briones), who thereafter placed Espino on light duty. However, Briones, Christine Pizzuli (Pizzuli), Director of Nursing, and other co-workers grew skeptical of Espino’s injury. As alleged, Briones, in particular, directly retaliated against Espino by refusing to accept Espino’s doctor’s note and routinely ignoring Espino’s attempts to communicate.

On August 20, 2015, Plaintiff was diagnosed with three labrum tears and was placed on supplemental disability. Plaintiff underwent surgery on his injured shoulder in October 2015 and again in September 2018.

In August 2019, Espino’s QME doctor declared that Espino had reached his maximum medical improvement (MMI) and could no longer return to his job because he was permanently injured. However, despite that medical conclusion, Espino sought another medical opinion and was thereafter approved for a subsequent surgery in contradiction to the QME’s MMI report.

On March 6, 2023, Nina Cail (Cail), a disability management consultant for UCLA Medical Center requested an interactive process dialogue meeting with Espino. On March 13, 2023, Espino replied to Cail that his request for further surgery was approved. Espino believed he had prolonged any interactive process with this communication.

In November 2020, UCLA Medical Center sent Espino a Notice of Unauthorized Leave. Espino did not receive the letter until January 15, 2021.

On December 9, 2020, UCLA Medical Center sent Espino an intent to terminate letter unless Espino responded by December 28, 2020.

On December 28, 2020, Espino emailed Briones and asked for help because he believed UCLA Medical Center had bypassed the interactive process.

On January 6, 2021, UCLA Medical Center terminated Espino for unauthorized leave.

On January 3, 2024, Espino received a right to sue letter. This action followed.

On April 11, 2024, Plaintiff filed a Complaint against defendant The Regents of the University of California (erroneously sued as Ronald Reagan UCLA Medical Center, hereafter The Regents or Defendant). On June 25, 2024, Plaintiff filed the First Amended Complaint (FAC) against The Regents for (1) disability discrimination in violation of FEHA, (2) failure to engage in the interactive process in violation of FEHA, (3) harassment in violation of FEHA, (4) retaliation in violation of FEHA, (5) failure to prevent discrimination, harassment, and retaliation in violation of FEHA, (6) failure to accommodate in violation of FEHA, and (7) and intentional infliction of emotional distress.

On August 8, 2024, The Regents filed this demurer to each cause of action in the FAC.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿

The first cause of action for disability discrimination is based on the following allegations: Defendant knew that Plaintiff severely injured his shoulder and was able to perform his essential light duty job duties for which he was assigned without reasonable accommodation. Defendant discriminated against and took adverse employment actions against Plaintiff due to his injury, including but not limited to ridiculing and dehumanizing Plaintiff and wrongfully terminating him. For instance, a coworker publicly inquired with an orthopedic nurse on the legitimacy of Plaintiff’s injury. On another occasion, Briones asked Plaintiff to scape labels off the shelves then grew impatient from Plaintiff’s inability to assert enough pressure to scrape off the labels. Briones suddenly scraped the labels off herself, slapped the scraper on the table when she finished, and left the room without wanting to hear Plaintiff’s explanation that he was still experiencing shoulder pain. Plaintiff is informed and believes that his shoulder injury was a substantial motivating reason for the Defendant's decision to discharge Plaintiff, as Defendant didn't believe Plaintiff was telling the truth. (FAC, ¶¶ 23-25, 49-52.)

Government Code section 12940, subdivision (a) prohibits an employer from discriminating against an employee on the basis of a medical condition or physical disability. FEHA discrimination claims are subject to the McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 burden-shifting framework. (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 354-356.) Under this framework, “the plaintiff initially has the burden to establish a prima facie case of discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

To establish a prima facie case of disability discrimination, the plaintiff must establish that he suffered from a disability, that he could perform the essential duties of the job, and that he was subjected to an adverse employment action because of the perceived disability. ¿(Id.) “The employee must also show the employer knew of his or her disability at the time it made the adverse employment decision. [Citation.].” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1378.)¿ “The plaintiff, of course, must plead a prima facie case in order to survive demurrer.” (Caldwell v. Paramount Unified Sch. Dist. (1995) 41 Cal.App.4th 189, 203.)

Defendant argues the second element of Plaintiff’s prima facie case is not and cannot be satisfied: that Plaintiff could perform the essential duties of the job with or without reasonable accommodation at the time he was terminated. In support, Defendant points out that because Plaintiff performed light duty work prior to his doctor placing him on disability in August 2015, “it stands to reason that Plaintiff could not continue performing these light duty assignments after August 2015.” (Dem., p. 14:14-15, citing FAC, ¶ 26.)

The point has merit. Plaintiff was placed on disability leave in August 2015 where he remained until his termination in 2021. In other words, the allegations are susceptible to the reasonable inference that he could not perform the essential duties of his job with reasonable accommodations because he could not perform even light duty work.

Further, although well-pleaded allegations are accepted as true and liberally construed in favor of the plaintiff at the demurrer stage, Plaintiff does not allege the requisite facts to overcome the demurrer, even as liberally construed. Plaintiff contends he could perform the essential duties of his job with reasonable accommodations. Plaintiff bases this contention on two points: (1) he successfully performed light duty work as a reasonable accommodation until he was placed on disability leave, and (2) Plaintiff demonstrated his intent and ability to return to work with the proper accommodations through additional surgeries and medical treatment.

However, the first point runs headlong into the problem described above: Plaintiff was not performing any duties at the time he was terminated. The second point fares no better. Seeking surgery or other medical treatment may be considered a reasonable accommodation (see, e.g., Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 599 (Soria); Cal. Code Regs. tit. 2, § 11065, subd. (p)(2)(M)) but Plaintiff’s allegations on his ability to perform the essential duties of his job are unclear. Plaintiff alleges that he “was able to perform his essential light duty job duties for which he was assigned without reasonable accommodation for his severe shoulder injury” (FAC, ¶ 50), and “was willing and able to perform the essential job duties with reasonable accommodation for his disability” (FAC, ¶ 99). At best, these allegations are inconsistent. But, taken together with Plaintiff’s alleged disability leave from 2015 to 2021, these allegations point to one conclusion: Plaintiff, although willing to perform the essential duties of his position, could not and indeed was not performing any duties at the time of his termination. Critically, the allegations do not make clear that Plaintiff would have been able to perform the essential duties of his job after undergoing a third surgery. Indeed, Plaintiff does not allege telling Defendant that he would be able to perform the essential duties of his job after the surgery, nor does he allege having undergone a third surgery at all.[1]

Accordingly, the demurrer to the first cause of action is SUSTAINED. Leave to amend is GRANTED.

B. Failure to Engage in Good Faith Interactive Process (2^nd Cause of Action)[2]

The second cause action is based on the following allegation: despite knowing that Plaintiff needed a third surgery to repair a severe shoulder injury, Defendant failed to engage in an interactive process with Plaintiff. (FAC, ¶¶ 60, 61, 63.)

FEHA requires employers to engage in a good faith interactive process to determine effective reasonable accommodations, if any, “in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability . . . .”¿ (Gov. Code, § 12940, subd. (n); Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222.)¿ To establish a claim for failure to engage in the interactive process, a plaintiff must show: (1) defendant was an employer; (2) plaintiff was defendant’s employee; (3) plaintiff was disabled; (4) plaintiff requested reasonable accommodation; (5) plaintiff was willing to participate in a timely good faith interactive process with plaintiff to determine whether a reasonable accommodation could be made; (6) defendant failed to participate in this process; (7) plaintiff was harmed; and (8) defendant’s failure to engage in a good-faith interactive process was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 2546.)¿¿¿

Defendant appears to challenge the fourth element of a failure to engage in interactive process claim. The Regents argue this cause of action fails because Plaintiff has not alleged sufficient facts to establish there existed a job with Defendant that Plaintiff could perform with severe injuries.

Defendant identifies the wrong accommodation. Nowhere in the FAC does Plaintiff allege that he requested reassignment.^{^[3]} Having not requested reassignment as a reasonable accommodation, the second cause of action cannot fail for Plaintiff’s failure to allege the existence of another job.

Rather, the implied accommodation is the approval for a third surgery. Plaintiff informed Defendant that he was approved for another surgery. The question, then, is whether Plaintiff sufficiently alleges requesting leave to have the third surgery. A term of leave from work can be a reasonable accommodation under FEHA. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226.) Although Plaintiff notified Cail, Defendant’s disability management consultant, that he was approved for a third surgery, Plaintiff does not allege if or when he planned to have the surgery. (See, e.g., Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 228 [holding that employee sufficiently requested accommodation of leave for surgery when she stated she “would likely” need surgery at some point in the next few months]; see also Soria, supra, 5 Cal.App.5th at p. 599 [finding, in reversing summary adjudication of a failure to accommodate claim, there was sufficient evidence “to permit a finder of fact to conclude Soria sufficiently communicated to Nava she intended to have surgery [in December 2011] and was requesting time off as an accommodation.”].) Defendant’s challenge to the fourth element of the cause of action finds a solid foothold. There are insufficient facts to construe “approval for surgery” without any reference to when the surgery might occur as a “request for leave to have surgery”.

Accordingly, the demurrer to the second cause of action is SUSTAINED. Leave to amend is GRANTED.

The third cause of action is based on the allegations that Defendant’s supervisory employees harassed Plaintiff based on a disbelief in the veracity of Plaintiff’s injury. (FAC, ¶ 72.)

Defendant argues this cause of action is time-barred. Plaintiff does not clearly allege when the complained-of conduct occurred. Defendant argues it must have occurred between March 2015 (when Plaintiff suffered the alleged injury) and August 2015 (when Plaintiff was placed on disability leave). Plaintiff does not challenge’s Defendant’s timeline.

Having occurred in 2015, the applicable version of the FEHA statute requires filing of an administrative complaint within one year of the unlawful conduct. (See Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 929-930 (applying former FEHA statute to conduct occurring in 2017 and finding the failure to promote claim was time barred for plaintiff’s failure to file a complaint within one year of the conduct).)

Here, Plaintiff alleges he received his right to sue letter on January 3, 2024. Plaintiff’s harassment claim is clearly time barred.

In opposition, Plaintiff argues the continuing violation doctrine applies because Defendant’s failure to engage in the interactive process and failure to reasonably accommodate Plaintiff occurred in 2020. The argument lacks merit. A failure to engage in the interactive process or to reasonably accommodate in good faith are distinct causes of action with different elements of proof. (See Miller v. California Dep't of Corr. & Rehab. (2024) ---Cal.Rptr.3d ---, No. E081230, 2024 WL 4262759, at *7 [“an employer's failure to engage in the interactive process and failure to provide a reasonable accommodation represent independent causes of action subject to different elements of proof. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 255-256, 102 Cal.Rptr.2d 55 (Jensen) [a claim for discrimination and a claim for failure to accommodate have different elements of proof, although there is some overlap]; Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 360-361, 118 Cal.Rptr.2d 443 [Section 12940, subd. (m) “defines a separate and distinct unfair employment practice independent of [section 12940, subd. (a)]”]; Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, 43 Cal.Rptr.3d 874 (Gelfo) [the employer's failure to reasonably accommodate a disabled individual and failure to engage in a good faith interactive process represent independent violations of the FEHA].) And an employer may be liable for the failure to engage in the interactive process or failure to provide a reasonable accommodation, without being liable for discrimination. (See Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 419, 424-425, 69 Cal.Rptr.3d 1 [jury verdict in favor of employer on discrimination and failure to accommodate claim is not inconsistent with verdict in favor of employee on interactive process claim]; King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 442, 60 Cal.Rptr.3d 359 [“An employer's failure to provide reasonable accommodation is a violation of the statute even in the absence of an adverse employment action”].)

Significantly, Plaintiff does not allege any conduct between 2015 and 2020 that may be construed as harassment. In essence, Plaintiff attempts to link conduct separated by several years. Plaintiff does not present any argument or authority to show such a gap in time may still constitute an ongoing pattern of conduct such that the continuing violation doctrine applies.

Accordingly, the demurrer to the third cause of action is SUSTAINED. Leave to amend is DENIED.

The fourth cause of action is based on the following allegations: Defendant retaliated against Plaintiff for requesting accommodations and pursuing medical treatments by skipping the interactive process and wrongfully terminating him. (FAC, ¶¶ 79-81.)

FEHA retaliation claims are subject to the McDonnell Douglas burden-shifting analysis. (Yanowitz L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042.)¿¿As with the first cause of action, the court begins by considering whether Plaintiff states a prima facie case for retaliation.

To establish a prima facie case of retaliation, a plaintiff must show that: (1) plaintiff engaged in protected activity; (2) the employer subjected the plaintiff to an adverse employment action; and (3) the protected activity and the employer’s action were causally connected. (Yanowitz, supra, 36 Cal.4th at p. 1042.)¿¿¿

Defendant attacks the third element. Defendant argues that, because Plaintiff’s request for accommodations occurred in 2015 (a protected activity), there is no causal link to the adverse actions in 2020 (failure to engage the interactive process) or 2021 (termination).

Plaintiff does not allege facts to demonstrate a causal connection between the protected activity which occurred in 2015 and the adverse actions which occurred in 2021. And, to the extent Plaintiff relies on leave to have another surgery, the court has found Plaintiff has not adequately alleged having made a request for that accommodation.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED. Leave to amend is GRANTED.

D. Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA (5^th Cause of Action)

A cause of action for failure to prevent discrimination or retaliation requires the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination/retaliation in the course of employment; (3) defendant failed to take all reasonable steps to prevent the discrimination/retaliation; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination/retaliation was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 2527; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1410.)¿ “The employer’s duty to prevent discrimination and retaliation is affirmative and mandatory.”¿ (Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035.)¿

Because the court has found that Plaintiff does not state a claim for disability discrimination or retaliation in violation of the FEHA, the demurrer to the fifth cause of action is SUSTAINED. Leave to amend is GRANTED.

The sixth cause action is based on the following allegation: despite knowing that Plaintiff needed a third surgery to repair a severe shoulder injury, Defendant failed to provide a reasonable accommodation. (FAC, ¶¶ 98, 100.)

“There are three elements to a failure to accommodate claim: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability.”¿ (CACI No. 2541; Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.) One of the principles of underlying a cause of action for failure to provide a reasonable accommodation is that the employee must request an accommodation. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954.)

As stated elsewhere, Plaintiff does not sufficiently allege he could perform the essential functions of his position. (See, supra, Section III (A).) The second element of this claim is not satisfied.

The third element is also insufficiently pleaded. As alleged, Defendant provided two reasonable accommodations: (1) assigning Plaintiff light duty work in March 2015 and (2) granting Plaintiff an extended leave for disability beginning in August 2015. To the extent Plaintiff relies on the third surgery, the court has found the allegations do not indicate Plaintiff requested leave to have another surgery. Therefore, Defendant cannot be held liable for failing to accommodate a request which was not made.

Accordingly, the demurrer to the sixth cause of action is SUSTAINED. Leave to amend is GRANTED.

The seventh cause of action for intentional infliction of emotional distress (IIED) is based on Defendant’s alleged failure to reasonably accommodate Plaintiff, bypassing the interactive process, and for wrongfully terminating his employment. (FAC, ¶¶ 106-107.)

Defendant argues the IIED claim is time barred. A cause of action for IIED must be brought within 2 years. (Code Civ Proc., § 335.1; Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444, 1450.) “A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.” (Cantu v. Resol. Tr. Corp. (1992) 4 Cal.App.4th 857, 889.)

Here, the last alleged conduct (Plaintiff’s termination) occurred on January 6, 2021. (FAC, ¶ 42.) Plaintiff filed this action more than three years later. The IIED claim is time-barred. Plaintiff does not address this argument in his opposition and therefore concedes the point.

Accordingly, the demurrer to the seventh cause of action is SUSTAINED. Because amendment would be futile, leave to amend is DENIED.

With the exception of the seventh cause of action, leave to amend is Granted. Plaintiff is directed to file and serve the Second Amended Complaint within 30 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff argues the continuing violation doctrine applies to this claim. However, Defendant does not challenge the first cause of action on statute of limitation grounds. The court therefore does not address Plaintiff’s argument.

[2] Defendant grouped its challenge to the second cause of action with the sixth cause of action for failure to accommodate. For clarity, the court addresses these causes of action separately.

[3] Conversely, Plaintiff cannot point to Defendant’s failure to offer Plaintiff another position in support of this claim where he did not request reassignment.