Judge: Maurice A. Leiter, Case: 21STCV47146, Date: 2023-01-24 Tentative Ruling

Case Number: 21STCV47146    Hearing Date: January 24, 2023    Dept: 54

Hearing Date: January 24, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Second Amended Complaint

Moving Party: Defendant County of Los Angeles

Responding Party: Plaintiff Karen McLeod

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

DEFENDANT TO FILE AND SERVE AN ANSWER TO THE SECOND AMENDED COMPLAINT WITHIN 20 DAYS OF NOTICE OF RULING.

            DEFENDANT TO NOTICE.

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.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

            On September 15, 2022, Plaintiff Karen McLeod filed the operative second amended complaint against Defendant County of Los Angeles, asserting causes of action for (1) violation of the Equal Pay Act; (2) discrimination; (3) retaliation; (4) failure to provide reasonable accommodation; (5) failure to engage in the interactive process; (6) failure to prevent discrimination and retaliation; and (7) 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.

ANALYSIS

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.)

A. Statute of Limitations

Defendant argues that the complaint is barred by the statute of limitations set forth in Gov. Code § 12960, which requires a party to 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. In 2019, Defendant hired an African American woman, Kiescha Hammond, to work with Plaintiff. Plaintiff alleges Hammond was treated as the “lead” and was or is paid more than Plaintiff. Also in 2019, Plaintiff received a performance evaluation of “competent,” rather than “very good,” which she had received previously. Plaintiff filed a complaint with the County Office of Equity Panel regarding her performance evaluation on March 4, 2019.

Under the one-year statute, Plaintiff may only recover for conduct that occurred after January 2020. 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, Hammond took credit for her work, the Department required Plaintiff provide medical documentation when she was hospitalized in December 2021, and Tanya Mothershed attempted to get Plaintiff to sign a document stating she missed an appointment while she was hospitalized. Plaintiff alleges Hammond continues to be paid more than Plaintiff. Defendant asserts that these allegations are insufficient to support Plaintiff’s claims of 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.) Plaintiff asserts that Hammond’s conduct and the conduct surrounding her medical condition make up a pattern of frequent and similar acts.

Plaintiff’s allegations are sufficient at the pleading stage. A demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by a statute of limitations.  It is not enough that the complaint shows that the action may be barred. (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) The SAC does not show that the action is clearly and affirmatively barred. The demurrer cannot be sustained on this basis.

B. Equal Pay

            Labor Code § 1197.5(b) provides, “An employer shall not pay any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions…”

            Defendant asserts the first cause of action fails because Plaintiff has failed to allege Plaintiff and Hammond do substantially similar work. Plaintiff alleges she has been performing the duties of Hammond’s position since 2014, Plaintiff trained Hammond, and Hammond and Plaintiff divide duties. This is sufficient to allege they engage in substantially similar work.

            The demurrer to the first cause of action is OVERRULED.

C. Discrimination

To establish a claim for discrimination in violation of FEHA, the plaintiff must generally prove that (1) he or she was a member of a protected class; (2) that he or she was qualified for the position he or she sought or was performing competently in the position he or she held; (3) that he or she suffered an adverse employment action, such as termination, demotion, or denial of an available job; and (4) some other circumstance suggesting discriminatory motive. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.)  

            Defendant asserts that Plaintiff’s discrimination 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, that Hammond allegedly took credit for Plaintiff’s work, and that Hammond is paid more than Plaintiff for doing substantially similar work. That Plaintiff is paid less than Hammond, in combination with the other conduct, is sufficient at the pleading stage to allege an adverse employment action.

            The demurrer to the second cause of action is OVERRULED.

D. Retaliation

To establish retaliation under FEHA, a plaintiff must show that “(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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) A retaliation claim can be brought by an employee who has complained of conduct reasonably believed to be discriminatory. (Id. at 1043; see also Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 209-10.)

Defendant demurs to the third cause of action on the ground that Plaintiff has failed to allege a causal link between Plaintiff’s CPOE complaint and an adverse employment action. In opposition, Plaintiff asserts that Defendant retaliated against her by filing a CPOE complaint against her. This is sufficient to plead retaliation.

The demurrer to the third cause of action is OVERRULED.

E. Failure to Accommodate and Engage in the Interactive Process

Government Code section 12940(m) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Govt. Code, § 12940(m)(1).) 

Government Code section 12940(n) provides that it is an unlawful employment practice “[f]or an employer . . . to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Govt. Code, § 12940(n).) 

Defendant asserts the fourth and fifth causes of action fail because Plaintiff did not request an accommodation. Plaintiff alleges Defendants marked her absent without pay when she was sick from chemotherapy, harassed her for documentation when she was hospitalized, and attempted to have her sign something saying she missed an appointment while she was hospitalized. This is sufficient to allege failure to provide accommodation and to engage in the interactive process.

Defendant’s demurrer to the fourth and fifth causes of action is OVERRULED.

F. Failure to Prevent Discrimination and Retaliation and Declaratory Relief

Government Code section 12940(k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Govt. Code, § 12940(k).)  

Defendant demurs to the sixth and seventh causes of action on the ground that Plaintiff cannot allege discrimination or retaliation. As discussed, the argument fails.

Defendant’s demurrer to the sixth and seventh causes of action is OVERRULED.