Judge: Salvatore Sirna, Case: 22PSCV01233, Date: 2023-02-01 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV01233    Hearing Date: February 1, 2023    Dept: G

Defendants Pomona Valley Hospital Medical Center and Ray Inge’s Demurrer to Plaintiff’s Complaint 

Respondent: Plaintiff Shaunette Miller

TENTATIVE RULING

Defendants Pomona Valley
Hospital Medical Center and Ray Inge’s Demurrer to Plaintiff’s Complaint is OVERRULED IN PART, SUSTAINED IN PART with twenty
(20) days leave to amend. 

BACKGROUND

This is an employment discrimination action. On June 28, 2019, Plaintiff Shaunette Miller was hired as a human resources director for Pomona Valley Hospital Medical Center (PVHMC) under the direct supervision of Ray Inge (Inge), PVHMC’s vice president of human resources. Soon afterwards, Plaintiff alleges Inge began sexually harassing Plaintiff by making lewd and inappropriate comments to Plaintiff about Inge’s private life and Plaintiff’s appearance. Plaintiff also alleges Inge singled out Plaintiff by commenting on Plaintiff’s attire, including scolding Plaintiff for wearing leggings.

As a result of Plaintiff’s refusal to give in to or entertain Inge’s alleged sexual harassment, Plaintiff alleges Inge began to retaliate against Plaintiff by yelling at Plaintiff, speaking to Plaintiff in a condescending manner, and undermining Plaintiff’s authority. Plaintiff further alleges that Inge discriminated against Plaintiff’s disability by attempting to make Plaintiff feel bad about using sick days, contacting Plaintiff’s primary care physician to verify accommodations, and demanding proof of Plaintiff’s physical therapy and chiropractor visits.

In response to this alleged harassment and discrimination, Plaintiff made complaints to recruitment supervisor Sandra Shea and benefits specialist Krystal Garcia. On August 5, 2021, Inge gave Plaintiff a performance evaluation that allegedly contained untruthful statements about Plaintiff. When Plaintiff submitted a rebuttal to the evaluation, Inge stated an independent third party would conduct a review of the performance evaluation and rebuttal. Plaintiff then alleges the review was conducted by Naomi Nightingale, one of Inge’s close friends, and that the final report absolved Inge of responsibility. A week afterwards, on August 10, 2022, Inge fired Plaintiff.

On October 12, 2022, Plaintiff filed a complaint against PVHMC, Inge, and Does 1-100, alleging the following causes of action: (1) sexual harassment in violation of Government Code sections 12940 et seq.; (2) discrimination in violation of Government Code sections 12940 et seq.; (3) retaliation in violation of the Fair Employment and Housing Act; (4) failure to provide reasonable accommodations in violation of the Fair Employment and Housing Act; (5) failure to engage in the interactive process in violation of the Fair Employment and Housing Act; (6) failure to prevent sexual harassment, discrimination, and retaliation in violation of the Fair Employment and Housing Act; (7) wrongful termination in violation of public policy; and (8) intentional infliction of emotional distress.    

On November 29, 2022, PVHMC and Inge (collectively, Defendants) filed the present demurrer. Prior to filing on November 9, Defendants’ counsel met and conferred telephonically with Plaintiff’s counsel and was unable to reach a resolution. (Johnson Decl., ¶ 2.)  

A hearing on the demurrer is set for February 1, 2023. A case management conference and OSC Re: Failure to File Proof of Service are also set for February 28.  

LEGAL STANDARD

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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 pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)¿ 

ANALYSIS

Defendants demur to Plaintiff’s entire complaint on the grounds that it pleads insufficient facts. The demurrer is OVERRULED IN PART, SUSTAINED IN PART.  The court OVERRULES Defendants’ demurrer to Plaintiff’s second, third, sixth, seventh, and ­­eighth causes of action.  The court SUSTAINS Defendants’ demurrer to Plaintiff’s first, fourth, ­­fifth, and eighth causes of action with twenty (20) days leave to amend.

Sexual Harassment (First Cause of Action)

Defendants argue Plaintiff’s first cause of action for sexual harassment fails to plead sufficient facts to state a claim. The court agrees.

Government Code section 12940, subdivision (j)(1) prohibits harassment of an employee “because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status.” (Gov. Code § 12940, subd. (j)(1).) “To establish a prima facie case of harassment, [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.” (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.)

In this case, Defendants argue Plaintiff failed to establish an intimidating, hostile, or offensive work environment because Plaintiff did not allege facts establishing Inge’s alleged conduct was severe or pervasive. A “hostile work environment form of sexual harassment is actionable only when the harassing behavior is pervasive or severe.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) In other words, the harassment must be “severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).) Thus, “an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283 (Lyle).)

In determining if harassment is severe enough to be actionable, “[T]he objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. [Citation.]” (Miller, supra, 36 Cal.4th at p. 462, quoting Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81-82 (Oncale).) This is an inquiry requiring “careful consideration of the social context in which particular behavior occurs and is experienced by its target” in which “[c]ommon sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing . . . and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive.” (Ibid, quoting Oncale, supra, 523 U.S. at p. 81-82.)

Here, Defendants argue Plaintiff only alleges two instances of sexual harassment. First, in July 2019, Plaintiff alleged Inge told Plaintiff “about an occasion where a woman tried to come onto him sexually in a club and flirted with him while his wife was in close proximity.” (Complaint, ¶ 18.) While Defendants argue this allegation involved another individual and had nothing to do with Plaintiff, discussions of prior sexual encounters can constitute harassment. (See Freeman v. Dal-Tile Corp. (4th Cir. 2014) 750 F.3d 413, 422.) Second, in August or September of 2019, Plaintiff alleged Inge commented on Plaintiff’s Facebook profile picture and claimed it did not “do her justice” because Plaintiff “was more beautiful in person.” (Complaint, ¶ 21-22.)

Plaintiff also claims Inge “often singled [Plaintiff] out by commenting on her attire” and scolded Plaintiff on numerous occasions for wearing leggings, even though Plaintiff alleges Plaintiff’s attire was compliant with company policy. (Complaint, ¶ 23.) In particular, Plaintiff describes an incident where Inge called Plaintiff into Inge’s office to inspect Plaintiff’s pants with another female employee, who concluded Plaintiff’s pants were in fact compliant with company policy. (Complaint, ¶ 24.) Plaintiff alleges Inge yelled at Plaintiff and spoke to Plaintiff in a condescending manner. (Complaint, ¶ 26.) Plaintiff alleges Inge undermined Plaintiff’s authority by refusing to address other employees’ noncompliance with Plaintiff’s requests on numerous occasions. (Complaint, ¶ 27.) In particular, Plaintiff describes an incident on November 14, 2019, where Plaintiff alleges Inge allowed an employee to yell at Plaintiff without ramifications and when Plaintiff complained, Inge publicly scolded Plaintiff and threatened Plaintiff’s job. (Complaint, ¶ 28.)

However, outside Inge’s description of the club incident and comment about Plaintiff’s profile picture, Plaintiff does not allege facts establishing Inge’s other actions were sexual harassment. Pursuant to FEHA and Title VII, “a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [Citation]; (2) because of sex [Citation]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment [Citations].” (Lyle, supra, 38 Cal.4th at p. 279.)

Here, Plaintiff alleged Inge frequently critiqued Plaintiff for wearing pants or leggings that were not in compliance with the company dress code. (Complaint, ¶ 23-24.) However, Plaintiff does not allege facts establishing how such criticisms were sexual or because of Plaintiff’s sex. Paragraph 25 of the complaint alleges that conduct by Inge ultimately led to “unconsented sexual advances,” but Plaintiff fails to set forth the alleged advances with any specificity.  (Complaint, ¶ 25.)

While Plaintiff does allege Inge yelled at Plaintiff and undermined Plaintiff’s standing in the workplace “because [Plaintiff] refused to give in or even entertain [Defendant’s] sexual harassment,” Plaintiff does not plead any facts establishing how or when Plaintiff refused Inge’s advances. Thus, while Plaintiff did allege two instances where Inge acted inappropriately, Plaintiff does not allege sufficient facts to establish these instances were severe or pervasive enough to constitute sexual harassment pursuant to FEHA.

Accordingly, Defendants’ demurrer to Plaintiff’s first cause of action is SUSTAINED with leave to amend.

Discrimination (Second Cause of Action)

Defendants maintain Plaintiff’s second cause of action for discrimination fails to plead sufficient facts to state a claim. The court disagrees.

To establish a prima facie case of disability discrimination, a plaintiff must show “he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations[;] and (3) was subjected to an adverse employment action because of the disability or perceived disability.” (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 926, quoting Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160 (Wills).)

In this case, Defendants maintain Plaintiff cannot establish disability discrimination because Plaintiff failed to allege a specific disability. Under the Fair Employment and Housing Act (FEHA), illness or sickness alone does not establish disability. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1249.) Instead, a physical disability is defined as “any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss” that affects “neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, [or] endocrine” body systems and “[l]imits a major life activity.” (Gov. Code, § 12926, subd. (m)(1)(A)-(B).)

Here, Plaintiff alleges “she had to take two weeks off work for a surgery.” (Complaint, ¶ 29.) Plaintiff does not allege what the surgery was for or how it qualified as a disability. Plaintiff then alleges Plaintiff had to take sick days but does not allege what the sick days were for. (Complaint, ¶ 30.) In March 2021, Plaintiff alleges Plaintiff contracted the flu, experienced respiratory issues, and received a medical note from Plaintiff’s primary care physician stating Plaintiff needed time off to recover. (Complaint, ¶ 31-32). In August 9, 2021, Plaintiff alleges Plaintiff had physical therapy and chiropractor appointments for a hip injury but does not allege how that hip injury limited a major life activity for Plaintiff. (Complaint, ¶ 35.)

Ultimately, the court finds the allegation that Plaintiff contracted the flu, experienced respiratory issues, and received a medical note requiring Plaintiff to take time off from work due to recovery issues is sufficient to establish a physical disability. However, even if Plaintiff had failed to allege sufficient facts to establish a disability, Defendants’ demurrer would still fail because Defendants do not address Plaintiff’s other allegations of discrimination on the basis of medical condition, gender, and sex as Defendants cannot demur to only part of a cause of action. (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 944.)

Accordingly, Defendants’ demurrer to Plaintiff’s second cause of action is OVERRULED.

Retaliation (Third Cause of Action)

Defendants contend Plaintiff’s third cause of action for retaliation fails to plead sufficient facts to state a claim. The court disagrees.

“To establish a prima facie case of retaliation under 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.’” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 380, quoting Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1020.)

In this case, Defendants contend Plaintiff failed to allege a causal connection between Plaintiff’s protected activity—reporting alleged harassment or retaliation—and adverse employment action—Plaintiff’s termination. While Plaintiff alleges Plaintiff reported Inge’s conduct to recruitment supervisor Sandra Shea and benefits specialist Krystal Garcia, Plaintiff does not describe their authority in PVHMC or in relation to Plaintiff. (Complaint, ¶ 37-38.) Furthermore, Plaintiff never states when these reports were made. (Complaint, ¶ 37-38.) In August 5, 2021, Plaintiff conclusively alleges Inge completed a performance evaluation of Plaintiff “littered with untruthful statements” but does not describe the statements or how they were untrue. (Complaint, ¶ 39.)

However, Plaintiff does allege Plaintiff filed a rebuttal to Inge’s performance evaluation on the grounds that Plaintiff was being retaliated against. (Complaint, ¶ 40.) Six months later, Plaintiff met with Naomi Nightingale (Nightingale), who was appointed to conduct an independent review, and reported to Nightingale that Plaintiff was being harassed and retaliated against. (Complaint, ¶ 40-45.) Six or seven months after the initial meeting between Plaintiff and Nightingale, Plaintiff received Nightingale’s final report that “absolved [Inge] of all responsibility.” (Complaint, ¶ 45-47.) A week later on August 10, 2022, Plaintiff alleges Inge fired Plaintiff. Thus, the court finds Plaintiff has demonstrated a causal link between Plaintiff’s unsuccessful objection to Inge’s evaluation, the resulting investigation, and subsequent dismissal.  

Accordingly, Defendants’ demurrer to Plaintiff’s third cause of action is OVERRULED.

Failure to Provide Reasonable Accommodations (Fourth Cause of Action)

Defendants argue Plaintiff’s fourth cause of action for failure to provide reasonable accommodations fails to plead sufficient facts to state a claim. The court agrees.

“In addition to prohibiting disability discrimination, FEHA provides an independent cause of action for an employer's failure ‘to make reasonable accommodation for the known physical or mental disability of an applicant or employee’ unless the accommodation would cause ‘undue hardship’ to the employer.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 597-598, quoting Gov. Code, § 12940, subd. (m).)

In this case, Plaintiff does not allege Defendants refused to accommodate Plaintiff by denying Plaintiff’s sick leave requests. Instead, Plaintiff claims Inge “used [Plaintiff’s] initial time off as a manipulation tactic to make her feel guilty about requesting additional sick days or leaving early.” (Complaint, ¶ 30.) When Plaintiff provided the medical note to support Plaintiff’s disability, Plaintiff alleges Inge “directly reached out to her primary care physician because he was skeptical of [Plaintiff’s] note.” (Complaint, ¶ 32.) Plaintiff alleges this was intended to disincentivize Plaintiff from taking sick leave. (Complaint, ¶ 33.) Plaintiff also alleges Inge pressured Plaintiff to stop working remotely by informing Plaintiff that PVHMC’s CEO did not want leaders working from home. (Complaint, ¶ 34.) Lastly, Plaintiff alleges Inge demanded proof of Plaintiff’s appointments for physical therapy and chiropractor visits. (Complaint, ¶ 35.)

Essentially, Plaintiff is alleging that Inge sought to discourage Plaintiff from taking sick leave or working remotely due to Plaintiff’s physical disability. However, while these allegations may support Plaintiff’s cause of action for discrimination, they do not establish Defendants outright denied or failed to provide reasonable accommodations for Plaintiff.

Accordingly, Defendants’ demurrer to Plaintiff’s fourth cause of action is SUSTAINED with leave to amend.

Failure to Engage in the Interactive Process (Fifth Cause of Action)

Defendants maintain Plaintiff’s fifth cause of action for failure to engage in the interactive process fails to plead sufficient facts to state a claim. The court agrees.

To establish a claim for failure to engage in the interactive process, a plaintiff must establish that (1) defendant was an employer or covered entity; (2) plaintiff was an employee; (3) plaintiff had a physical condition known to defendant; (4) plaintiff requested reasonable accommodation to perform essential job requirements; (5) plaintiff was willing to participate in the interactive process to determine whether reasonable accommodations could be made; (6) defendant failed to participate in a timely good-faith interactive process; (7) plaintiff was harmed; (8) defendant’s failure to engage in good faith interactive process was substantial factor in causing plaintiff's harm. (CACI 2546.)

In this case, as noted above with regards to the fourth cause of action, Plaintiff has failed to allege facts establishing a failure to accommodate Plaintiff’s disability. Because Plaintiff’s requested accommodations were granted by Defendants, Plaintiff cannot claim Defendants failed to engage in the interactive process. (Cf. Brown v. Los Angeles Unified School District (2021) 60 Cal.App.5th 1092, 1109 [agreement to provide a requested accommodation and failure to follow through is not a failure to engage in interactive process].)

Accordingly, Defendants’ demurrer to Plaintiff’s fifth cause of action is SUSTAINED with leave to amend.

Failure to Prevent Sexual Harassment, Discrimination, and Retaliation (Sixth Cause of Action)

Defendants contend Plaintiff’s sixth cause of action for failure to prevent sexual harassment, discrimination, and retaliation fails to plead sufficient facts to state a claim. Defendants contend it fails because it is derivative of Plaintiff’s first, second, and third causes of action. However, this argument fails because the court overruled Defendants’ demurrer as Plaintiff’s cause of action for discrimination and retaliation.

Accordingly, Defendants’ demurrer to Plaintiff’s sixth cause of action is OVERRULED.

Wrongful Termination in Violation of Public Policy (Seventh Cause of Action)

Defendants argue Plaintiff’s seventh cause of action for wrongful termination in violation of public policy fails to plead sufficient facts to state a claim. Defendants argue it fails because it is derivative of Plaintiff’s prior claims, specifically Plaintiff’s first, second, and third causes of action. This argument fails because the court overruled Defendant’s demurrer to Plaintiff’s cause of action for discrimination and retaliation.

Accordingly, Defendants’ demurrer to Plaintiff’s seventh cause of action is OVERRULED.

Intentional Infliction of Emotional Distress (Eighth Cause of Action)

Defendants maintain Plaintiff’s eighth cause of action for intentional infliction of emotional distress (IIED) fails to plead sufficient facts to state a claim. The court agrees.

To establish a claim of IIED, one must show “(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.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, quoting Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593.) Extreme and outrageous conduct is defined as exceeding “all bounds of decency usually tolerated by a decent society” and intending to cause mental distress. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618 (Fisher).)¿ 

In this case, Defendants maintain Plaintiff fails to allege the existence of any outrageous conduct. “[B]y its very nature, sexual harassment in the workplace is outrageous conduct as it exceeds all bounds of decency usually tolerated by a decent society.” (Id., at p. 618.) Thus, “if properly pled, sexual harassment will constitute the outrageous behavior element of a cause of action for intentional infliction of emotional distress.” (Ibid.) However, as noted above, Plaintiff has not pled sufficient facts to state a cause of action for sexual harassment. Therefore, Plaintiff has not established the existence of outrageous conduct that supports an IIED claim.

Accordingly, Defendants’ demurrer to Plaintiff’s eighth cause of action is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Defendant’s demurrer to Plaintiff’ complaint is OVERRULED as to Plaintiff’s second, third, sixth, and seventh causes of action. 

Defendant’s demurrer to Plaintiff’s complaint is SUSTAINED as to the first, fourth, fifth, and eighth causes of action with twenty (20) days leave to amend.