Judge Teresa A. Beaudet, Case 21STCV32561 2023-03-13 Tentative Ruling

Plaintiff Glenn Timmons (“Plaintiff”) filed this action on September 1, 2021 against Defendant County of Los Angeles (“County”). Plaintiff filed a First Amended Complaint on February 10, 2022.

On June 3, 2022, the Court issued an Order sustaining the County’s demurrer to the First Amended Complaint in its entirety, with leave to amend.

Plaintiff filed the operative Second Amended Complaint (“SAC”) on June 22, 2022. The SAC asserts causes of action for (1) discrimination, harassment, and retaliation in violation of FEHA, (2) failure to accommodate in violation of FEHA, (3) failure to engage in the interactive process in violation of FEHA, (4) failure to prevent discrimination and harassment, and (5) retaliation in violation of FEHA.

The County now demurs to each of the causes of action of the SAC on the basis that each fails to state facts sufficient to constitute a cause of action. Plaintiff opposes.

Plaintiff alleges that he is a 57-year-old Asian-American man. (SAC, ¶ 8.) Plaintiff worked for the County of Los Angeles Department of Public Works (“DPW”) since 1995. (SAC, ¶ 11.) Plaintiff currently works as a Contract Monitor for the Environmental Program Division. (SAC, ¶ 11.)

Plaintiff was reclassified from a Maintenance Worker to a Contract Monitor in approximately April of 2007. (SAC, ¶ 11.) Plaintiff alleges that the County “borrowed Plaintiff’s job classification, item 4227 Contract Monitor, from a different Division, the Internal Services Department (ISD),” and “[u]ntil this day, class item 4227 is currently listed under ISD and not under DPW, of the LA County Class Specifications site.” (SAC, ¶ 13.) Plaintiff asserts that because the Contract Monitor job classification is borrowed from the ISD, he cannot be promoted either within DPW or ISD. (SAC, ¶ 14.) Plaintiff alleges that from 2007 to the present, he was tasked with duties from other job classifications, but has never been fairly compensated for the same. (SAC, ¶¶ 24-25.)

Plaintiff alleges that based on the problematic job description for his position, he told the County that he would ask for an “Additional Responsibility Bonus.” (SAC, ¶ 26.) The County provided Plaintiff with retroactive compensation for working out of class, but the revised classification stopped. (SAC, ¶ 27.) Plaintiff alleges that when he “attempted to object to the modifications,” Defendants retaliated against him by taking away his job duties, banning him from a facility, reassigning him to a far-off location, and adding new duties. (SAC, ¶ 28.) Plaintiff’s supervisors also allegedly forced him to work in remote locations without restrooms or potable water. (SAC, ¶ 28.)

Plaintiff also alleges that each contract monitor is assigned to work in communities based on their race/ethnicity. (SAC, ¶ 34.) Plaintiff requested a reporting location closer to home, which request was denied, while other coworkers were given the option to choose their location. (SAC, ¶ 35.) Following his recent transfer denial and reassignment to another primarily Asian neighborhood, Plaintiff reported to his supervisor that the facility was filthy and unkept. (SAC, ¶ 38.) After reporting this, the department refused to give Plaintiff a key to the restroom and office. (SAC, ¶ 38.) In addition, following Plaintiff’s reassignment to a new reporting location, Plaintiff no longer had access to an office space. (SAC, ¶ 39.) Instead, Plaintiff has been directed by his supervisors to use the inside of county vehicles to do his office work, including all of his computer-based reporting and other work. (SAC, ¶ 39.) Plaintiff alleges that because of this action, ergonomic adjustments Plaintiff had for his disability were taken away, such as adjustments to his office chair, computer keyboard, and computer mouse. (SAC, ¶ 40.)

Plaintiff further alleges that on June 18, 2020, he submitted an email to his supervisors requesting a work schedule adjustment, which was denied. (SAC, ¶¶ 41-42.) When Plaintiff asked for the reasoning behind the denial, Plaintiff’s supervisor stated “[i]f Plaintiff wanted that change in schedule, Plaintiff can go work for a different division.” (SAC, ¶ 42.) The County also denied Plaintiff a promotion. (SAC, ¶ 43.)

Plaintiff also alleges that his supervisor Steve Milewski (“Milewski”) belittled Plaintiff, taunted Plaintiff, subjected Plaintiff to verbal abuse in front of everyone, and disallowed Plaintiff to attend the headquarters for any reason. (SAC, ¶ 53.)

Plaintiff alleges that “[i]n the first week of June 2019, he was called into a meeting by management n [sic] HR manager: Mike Diceasare, Steve Milewski and Coby Skye, Steve’s boss, all Caucasian male Management), who ambushed him, intimidated him, belittled him and their union rep.” (SAC, ¶ 56.) Plaintiff alleges that management made it a point to use Plaintiff as an example for his previous complaints, and that in June 2020 he was transferred again to “Road yards (near home assignments).” (SAC, ¶ 57.)

Plaintiff was out on approved medical leave from March 2020 through June 7, 2020, and upon Plaintiff returning to work on June 8, 2020, Plaintiff was allegedly subjected to different terms and conditions of employment including but not limited to, his work restrictions not being honored, receiving a different job description, and receiving no response to his request for a close to home assignment position. (SAC, ¶ 55.)

Plaintiff further alleges that after Plaintiff’s doctor gave him workspace restrictions upon returning from leave in June 2020, he was provided a number of physical accommodations. (SAC, ¶ 68.) Milewski told Plaintiff that he did not have a real injury and that he would not honor his restrictions. (SAC, ¶ 68.) In addition, Plaintiff’s work restriction papers were not given to HR by his supervisors. (SAC, ¶ 68.)

In addition, Plaintiff alleges that in June or July of 2020, Milewski and “Coby Skye” told Plaintiff that he was going to undergo “Freeway therapy”; a term “where they punish people with long commutes.” (SAC, ¶ 71.) Plaintiff’s new location was South Whittier, far away from headquarters and far from Plaintiff’s home. (SAC, ¶ 71.) Plaintiff also alleges that “[i]n July of 2020 Plaintiff was sent an email by…Milewski to inspect for and report of human and animal feces at the yard, far outside his scope of work.” (SAC, ¶ 74.)

Plaintiff further alleges that in the summer of 2020, Plaintiff’s timesheet was manipulated by Milewski, who added vacation hours for Plaintiff’s approved sick time. (SAC, ¶ 77.)

In addition, Plaintiff alleges he “was put on a reprimand memo every 6 months, every time he would use sick leave.” (SAC, ¶ 81.) Plaintiff was allegedly punished for using sick time on September 1, 2020. (SAC, ¶ 83.)

In the demurrer, the County argues that Plaintiff fails to set forth claims for harassment and discrimination under FEHA.

As an initial matter, the Court notes that Plaintiff does not appear to allege separate causes of action for harassment and discrimination. On the caption page of the SAC, Plaintiff alleges that the first cause of action is for “Discrimination, Harassment, & Retaliation in Violation of the California Fair Employment and Housing Act (Govt. Code § 12900, et seq.)” The Court notes that “¿a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.¿” (¿Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047¿; ¿see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action.”]¿.) “¿[W]hen a substantive defect is clear¿from the face of a complaint . . . a defendant may attack that portion of the cause of action by filing a motion to strike.¿” (PH II, Inc. v. Superior Ct., supra, ¿33 Cal.App.4th at pp. 1682-1683¿.)

The County also asserts that Plaintiff’s FEHA claims are not pleaded with particularity. “[T]he general rule [is] that statutory causes of action must be pleaded with particularity.” ((Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Plaintiff does not respond to this point in the opposition.

The Court agrees with the County that Plaintiff has not pleaded the first cause of action with particularity. As set forth above, in the caption page of the SAC, Plaintiff alleges that the first cause of action is for “Discrimination, Harassment, & Retaliation in Violation of the California Fair Employment and Housing Act (Govt. Code § 12900, et seq.).” However, page 17:2-3 of SAC alleges that the first cause of action is for “Discrimination in Violation of the California Fair Employment and Housing Act.” It is thus unclear what the first cause of action is stating a claim for.

Based on the foregoing, the Court sustains the demurrer to the first cause of action.[1]

Plaintiff’s fifth cause of action is for retaliation in violation of FEHA. “¿Employees may establish a¿prima¿facie¿case¿of unlawful¿retaliation¿by showing¿that (1) they engaged in activities protected by the¿FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action.¿” (¿Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1192–1193¿.)

The County asserts that Plaintiff has failed to set forth any causal link between an “adverse employment action” and his alleged protected activity.

In support of the fifth cause of action, Plaintiff alleges that “[t]hrough the pattern and practice of conduct delineated above, Defendants, their agents and employees have retaliated against Plaintiff by subjecting him to adverse employment actions as a direct result of his opposing discriminatory practices.” (SAC, ¶ 137.) In the SAC, Plaintiff alleges, inter alia, that “Defendants retaliated against Plaintiff for complaining about the conflict in salaries of the contract monitors. Defendants retaliated against him by having Plaintiff’s actual supervisor, verbally counsel him and deny his leave use.” (SAC, ¶ 43.) In the “factual allegations” portion of the SAC, Plaintiff alleges that “Defendants taking away of Plaintiff’s ergonomics was in direct retaliation for Plaintiff’s numerous complaints regarding Defendants’ discriminatory conduct regarding his working out of classification.” (SAC, ¶ 85.) In addition, Plaintiff alleges that “[i]n the fall of 2020, after reporting a contract violation that Steve Milewski had known but failed to report, Plaintiff was reassigned to another further work location.” (SAC, ¶ 84.)

The Court finds that these allegations are sufficient and overrules the demurrer to the fifth cause of action.

The County asserts that the fourth cause of action is derivative in nature. Indeed, Plaintiff alleges that “defendants and each of them, and/or their agents/employees, failed to take all reasonable steps necessary to prevent discrimination and harassment on the basis of his age, race/ethnicity, and/or disability from occurring, and to remedy such discrimination and harassment.” (SAC, ¶ 134.)

In Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289, the Court of Appeal noted that “[t]here’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen, for not having a policy to prevent discrimination when no discrimination occurred…Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented…Also, there is a significant question of how there could be legal causation of any damages (either compensatory or punitive) from such a statutory violation, where the only jury finding was the failure to prevent actionable harassment or discrimination, which, however, did not occur.”

Because the Court sustains the County’s demurrer to the first cause of action, the Court likewise sustains the demurrer to the fourth cause of action.

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” ((Swanson v. Morongo Unified School Dist. (2014) 232 Cal.App.4th 954, 969 [internal quotations omitted].) The County argues that Plaintiff failed to set forth a failure to accommodate claim under FEHA because Plaintiff is “unfailingly vague concerning his disabilities, and how his claims correspond to the fact that he holds a field position.” (Demurrer at p. 14:19-20.)

In the opposition, Plaintiff points to paragraph 40 of the SAC as allegations of Plaintiff’s disability. Paragraph 40 alleges that “the ergonomic adjustments Plaintiff had for his qualified and bona-fide disability were taken away after the doctor’s recommendations and approvals were initially provided and approved.” (SAC, ¶ 40.) Although Plaintiff alleges in a conclusory manner that he has a “disability,” Plaintiff does not appear to allege any facts concerning what the disability is. The Court thus agrees with the County that the SAC is quite vague concerning Plaintiff’s alleged disability.

Based on the foregoing, the Court sustains the County’s demurrer to the second cause of action.

Pursuant to Government Code section 12940, subdivision (n), it is an unlawful employment practice “[f]or an employer or other entity covered by this part 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.” (Gov. Code, § 12940, subd. (n).)

The County asserts that Plaintiff fails to sufficiently allege a disability and fails to allege that the County failed to interact or accommodate his alleged disability. As discussed above, the Court agrees with the County that Plaintiff does not allege a disability with sufficient factual specificity. In support of the third cause of action, Plaintiff alleges in a conclusory fashion that “Defendants also knew, or should have known, of the need to accommodate Plaintiff’s disabilities, including the need to engage in the interactive process to determine how to achieve a reasonable accommodation for Plaintiff. However, Defendants failed and refused to engage in the interactive process with Plaintiff, despite Plaintiff’s specific request(s) for consideration of

Based on the foregoing, the Court sustains the County’s demurrer to the third cause of action.

For the foregoing reasons, the County’s demurrer is sustained as to the first, second, third, and fourth causes of action. The County’s demurrer is overruled as to the fifth cause of action.

The Court notes that the County’s demurrer to the causes of action of the FAC was not sustained on the foregoing grounds. (See June 3, 2022 Order.) Accordingly, the Court sustains the demurrer to the first, second, third, and fourth causes of action of the SAC with leave to amend.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, the County is ordered to file and serve its answer within 30 days of the date of this Order.¿

[1]The County also asserts that the Court should “require that [Plaintiff] divide up the different theories into specific counts, as a matter of judicial administration.” (Demurrer at p. 11:2-3.) However, the County does not set forth any legal authority demonstrating that this is a proper grounds for demurrer. If Plaintiff intends to allege more that one cause of action for violation of FEHA, then each such cause of action should be separately alleged and identified.

Superior Court of California

County of Los Angeles

Department 50