Judge Maurice A. Leiter, Case 21STCV47146 2022-08-16 Tentative Ruling

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

On March 4, 2022, Plaintiff Karen McLeod filed the operative first amended complaint against Defendant County of Los Angeles, asserting causes of action for (1) discrimination; (2) retaliation; (3) failure to provide reasonable accommodation; (4) failure to engage in the interactive process; (5) failure to prevent discrimination and retaliation; and (6) declaratory relief. Plaintiff, a 64-year-old white woman with a previous cancer diagnosis, alleges Defendant discriminated and retaliated against her due to her race, age, and disability.

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it. (CCP § 430.50(a).) A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.) The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law. (Id. at 732-33.) The complaint is to be construed liberally to determine whether a cause of action has been stated. (Id. at 733.)

Defendant demurs to the first amended complaint on the ground that it is barred by statute of limitations set forth in Gov. 12960, which requires that a party file a DFEH complaint within one year[1] of the violation. Plaintiff filed a DFEH complaint on June 18, 2021 and seeks redress for conduct occurring as far back as 2014.

Plaintiff alleges that when she was hired in 2014, she was the only white person in the unit and was placed in her own classroom and isolated from her coworkers. From 2015-2018, Plaintiff alleges she was denied her out-of-class bonus because she took FMLA leave, was required to take an exam for a position she did not want, and was once marked absent without pay after she refused to take an ambulance called by supervisors. (FAC ¶¶ 30-47.) In 2019, Defendant hired an African American woman, Kiescha Hammond, to work with Plaintiff. (Id. ¶ 48.) Plaintiff alleges Hammond was treated as the “lead.” (Id.) Also in 2019, Plaintiff received a performance evaluation of “competent,” rather than “very good,” which she had received previously. (Id. ¶ 49.) Plaintiff filed a complaint with the County Office of Equity Panel regarding her performance evaluation on March 4, 2019. (Id. ¶ 50.) In 2020, Plaintiff alleges the department received a COEP complaint against Plaintiff and Hammond took credit for Plaintiff’s work on a power point presentation. (Id. ¶¶ 52-53.)

In the year preceding the filing of the DFEH complaint, Plaintiff alleges she once had to work on her regular day off because Hammond received two days off. (FAC ¶ 55.)

Plaintiff alleges Hammond took credit for her work and the Department required Plaintiff to provide medical documentation when she was hospitalized in December 2021. (Id. ¶¶ 56-66.)

Under the one-year statute, Plaintiff may recover only for conduct that occurred between June 2020 and June 2021. As stated, the only alleged wrong that occurred during that period was that Plaintiff once had to work on her regular day off, while Hammond received two days off. This is insufficient to support Plaintiff’s claims for discrimination and retaliation.

In opposition, Plaintiff argues that the complaint is not barred under the continuing violations doctrine. The continuing violations doctrine applies when a plaintiff raises a claim based on conduct that occurred in part outside the limitations period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 812.) “Allegations of a pattern of reasonably frequent and similar acts may, in a given case, justify treating the acts as an indivisible course of conduct actionable in its entirety, notwithstanding that the conduct occurred partially outside and partially inside the limitations period.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1198.)

Even assuming there is some pattern of conduct between allegations involving Hammond and Plaintiff’s being required to work on her regular day off, there are no connections to Plaintiff’s disability claims. Plaintiff’s allegations regarding her disability claims before June 2020 are barred. Plaintiff’s race and age allegations fail for independent reasons discussed below.

Defendant asserts that Plaintiff’s discrimination and retaliation claims fail because Plaintiff did not suffer an adverse employment action. Courts have defined “adverse employment action” as something affecting the terms, conditions, or privileges of employment, such as termination or demotion. (Horseford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 373.) The “changes in terms and conditions of employment must be both substantial and detrimental to be actionable.” (Id.) “ ‘Minor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable, but adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion falls within the reach of the antidiscrimination provisions of [Government Code] section 12940, subdivision (a).’ ” (Id. quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054.)

Plaintiff alleges Plaintiff “suffered the adverse employment actions of discriminatory denial of promotion, denial of equal working conditions, denial of accommodations, refusal to engage in good faith in the interactive process, and failure to prevent discrimination and retaliation.” These working conditions include one “competent” performance review, the requirement that she test for another position, that someone filed a COEP complaint against her, and that Hammond allegedly took credit for Plaintiff’s work. None of these allegations is “substantial and detrimental.” Plaintiff has not received less pay, or suffered demotion or termination. That another employee takes credit for Plaintiff’s work is not an “adverse employment action.”

The demurrer to the first, second, fifth, and sixth causes of action is SUSTAINED.

[1] This statute was amended in January 2020 to allow employees three years, instead of one, to file a DFEH complaint. It does not apply to conduct occurring before January 2020.