Judge Teresa A. Beaudet, Case Number: 21STCV32561, Date: 2023-10-23 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 a Second Amended Complaint (“SAC”) on June 22, 2022. The SAC asserted 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.

On March 13, 2023, the Court issued an Order sustaining the County’s demurrer as to the first, second, third, and fourth causes of action of the SAC, with leave to amend. The Court overruled the County’s demurrer as to the fifth cause of action of the SAC.

On April 4, 2023, Plaintiff filed the operative Third Amended Complaint (“TAC”). The TAC asserts causes of action for (1) discrimination 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) harassment in violation of FEHA, and (5) retaliation in violation of FEHA.

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

The County’s request for judicial notice is granted. In addition, Plaintiff’s request for judicial notice is granted.

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

Plaintiff was reclassified from a Maintenance Worker to a Contract Monitor in approximately April of 2007. (TAC, ¶ 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.” (TAC, ¶ 13.) Plaintiff asserts that because the Contract Monitor job classification is borrowed from the ISD, he cannot be promoted either within DPW or ISD. (TAC, ¶ 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. (TAC, ¶¶ 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.” (TAC, ¶ 26.) The County provided Plaintiff with retroactive compensation for working out of class, but the revised classification stopped. (TAC, ¶ 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. (TAC, ¶ 28.) Plaintiff’s supervisors also allegedly forced him to work in remote locations without restrooms or potable water. (TAC, ¶ 28.)

Plaintiff also alleges that each contract monitor is assigned to work in communities based on their race/ethnicity. (TAC, ¶ 34.) Plaintiff requested a reporting location closer to home, which request was denied, while other coworkers were given the option to choose their location. (TAC, ¶ 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. (TAC, ¶ 38.) After reporting this, the department refused to give Plaintiff a key to the restroom and office. (TAC, ¶ 38.) In addition, following Plaintiff’s reassignment to a new reporting location, Plaintiff no longer had access to an office space. (TAC, ¶ 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. (TAC, ¶ 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. (TAC, ¶ 40.)

Plaintiff further alleges that on June 18, 2020, he submitted an email to his supervisors requesting a work schedule adjustment, which was denied. (TAC, ¶¶ 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.” (TAC, ¶ 42.) The County also denied Plaintiff a promotion. (TAC, ¶ 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. (TAC, ¶ 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.” (TAC, ¶ 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).” (TAC, ¶ 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. (TAC, ¶ 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. (TAC, ¶ 68.) Milewski told Plaintiff that he did not have a real injury and that he would not honor his restrictions. (TAC, ¶ 68.) In addition, Plaintiff’s work restriction papers were not given to HR by his supervisors. (TAC, ¶ 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.” (TAC, ¶ 71.) Plaintiff’s new location was South Whittier, far away from headquarters and far from Plaintiff’s home. (TAC, ¶ 71.) Plaintiff further alleges that he “was reassigned to new reporting road yards,” and that he was “denied a restroom key to access a restroom.” (TAC, ¶¶ 72-73.) Plaintiff alleges that when he complained to Milewski about the lack of access restrooms, Milewski laughed at Plaintiff and remarked to another co-worker, “just get him some Depends.” (TAC, ¶ 74.) Plaintiff alleges that he believes “Milewski was ridiculing him because of his age and saying that he should use adult diapers in place of having access to a restroom.” (TAC, ¶ 74.)

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.” (TAC, ¶ 75.) Plaintiff alleges that in the summer of 2020, Plaintiff’s timesheet was manipulated by Milewski, who added vacation hours for Plaintiff’s approved sick time. (TAC, ¶ 78.)

In addition, Plaintiff alleges he “was put on a reprimand memo every 6 months, every time he would use sick leave.” (TAC, ¶ 82.) Plaintiff was allegedly punished for using sick time on September 1, 2020. (TAC, ¶ 84.) Plaintiff further 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, this time San Pedro.” (TAC, ¶ 85.)

In the demurrer, the County asserts that “all allegedly operative claims are barred as a mater of law given [Plaintiff’s] failure to timely exhaust his administrative remedies.” (Demurrer at p. 13:20-21.) More specifically, the County asserts that Plaintiff “alleges being permanently removed…from office duties at headquarters on June 2, 2018. Yet, that was more than two years before the date he filed his administrative claim with the Department of Fair Employment and Housing (‘DFEH’). A one year claim period applied at that time.” (Demurrer at p. 4:13-15, emphasis omitted.)

As to the purported date Plaintiff field his administrative claim, the County asserts that Plaintiff “filed his DFEH administrative complaint no earlier than June 18, 2020, meaning that everything before at least June 18, 2019 is barred.” (Demurrer at p. 14:2-3.) Plaintiff alleges in the TAC that “[o]n September 3, 2020, Plaintiff received from the DFEH a ‘Notice of Right to Sue’ – attached hereto as Exhibit A.” (TAC, ¶ 47, Ex. A.) Plaintiff’s Exhibit “A” also attaches an undated “Complaint of Discrimination and Retaliation” which alleges, inter alia, that “[t]he most recent incident was Tuesday June 18th, 2020…” (TAC, ¶ 47, Ex. A.)

Before suing for violation of FEHA, a plaintiff must file a timely and sufficient administrative complaint with the California Department of Fair Employment and Housing (“DFEH”) and receive a “right to sue” notice. (Gov. Code, §§ 12960, 12965(b).)¿Under the former version of Government Code section 12960,¿a person claiming to be aggrieved by an alleged unlawful practice¿under FEHA¿was obligated to file an administrative complaint with the DFEH within one year from¿the date the alleged unlawful practice¿or refusal to cooperate with FEHA occurred.¿(Former Gov. Code §12960(d), amended eff. Jan. 1, 2020, by Stats. 2019, ch. 709 (Assembly Bill No. 9).)¿Government Code section 12960 now requires administrative complaints to be filed with the DFEH within three years from the date of the alleged unlawful practice or the date the refusal to cooperate occurred. (See Gov. Code, § 12960(e)(5) [“[a] complaint alleging¿a violation of¿Section 51.9 of the Civil Code¿or¿any other violation of Article 1 (commencing with¿Section 12940) of Chapter 6 shall not be filed after the expiration of three years from the date upon which the unlawful practice or refusal to cooperate occurred.”])

The County notes that in the first through third causes of action of the TAC, Plaintiff alleges, inter alia, that “[o]n or about June 2, 2018, Plaintiff’s supervisor Steve Milewski took away Plaintiff’s ergonomic accommodations by banishing him from working at Headquarters, where Plaintiff shared an office, and assigning him to the Whittier yard. The Whittier Yard did not have an office with the accommodations needed by Plaintiff…” (TAC, ¶ 109, 131, 155, emphasis added.)

In the opposition, Plaintiff does not appear to dispute that the above allegations concerning the incident on June 2, 2018 are untimely. Rather, Plaintiff asserts that the County “attempt[s] to hone in on one date of harm in 2018, while ignoring the already plead [sic] allegation [sic] of 2019 and 2020.” (Opp’n at p. 8:8-9.) In support of this assertion, Plaintiff points to a number of allegations of the TAC, including paragraph 68 of the TAC, which alleges that “[a]fter Plaintiff’s doctor gave him workspace restrictions upon returning from leave in June 2020; he was provided a number of physical accommodations, including at his cubicle in headquarters; his computer at headquarters including ergonomics; and a new ergonomically correct chair for Plaintiff. Plaintiff was told by Steve Milewski he did not have a real injury; and that he would not honor his restrictions. Plaintiff work restriction papers were not given to HR by his supervisors. Steve Milewski took these away from Plaintiff when he transferred him to South Whittier.” (TAC, ¶ 68, emphasis added.) Plaintiff also points to paragraph 55 of the TAC, which alleges that “Plaintiff was out on approved medical leave from March 2020 thru June 7, 2020. Upon Plaintiff returning to work, on June 8, 2020, Plaintiff was 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.” (TAC, ¶ 55.)

In the reply, the County asserts that “June 2, 2018 is not simply ‘one date of harm,’ but was apparently the date the County forced him to work within his job specifications.” (Reply at p. 4:11-13.) But as set forth above, Plaintiff also alleges that incidents occurred after that date in 2020. The County assert that Plaintiff “superimposes his new assertions on top of his old ones.” (Reply at p. 4:7.) It is unclear to the Court what the County means by this assertion.

In addition, the Court notes that as to the allegations of the June 2, 2018 incident, “¿¿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¿¿.)¿¿¿

To establish a prima facie case for harassment, a plaintiff must show that “(1) he [or she] was a member of a protected class; (2) he [or she] was subjected to unwelcome [] harassment; (3) the harassment was based on [membership in the protected class]; (4) the harassment unreasonably interfered with his [or her] work performance by creating an intimidating, hostile, or offensive work environment; and (5) the [employer] is liable for the harassment.” (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.) A plaintiff must establish that the harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment.” (Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 465.)

The County notes that in Thompson v. City of Monrovia, supra, 186 Cal.App.4th at page 879, the Court of Appeal concluded that “the Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.”

The County asserts that here, Plaintiff “still fails to allege any facts demonstrating ‘harassment’ under the FEHA. Moreover, the entirety of the County’s alleged actions constitute personnel decisions, not falling under the definition of harassment. He also claim [sic] Mileski told someone (at some time) that Timmons should just wear ‘Depends’ given his resistance to working field duties. Timmons does not allege hearing this, and it is at worst a sporadic comment which fails to give rise to a harassment claim (or any claim).” (Demurrer at p. 14:24-28.)

But the County does not cite to legal authority demonstrating that Plaintiff must allege that he heard Mr. Milewski’s alleged statement concerning “Depends” in order to state a cause of action for harassment. In addition, it is unclear how such alleged statement constitutes a personnel decision. Further, as noted by Plaintiff, he also alleges that “[a]fter Plaintiff’s doctor gave him workspace restrictions upon returning from leave in June 2020; he was provided a number of physical accommodations, including at his cubicle in headquarters; his computer at headquarters including ergonomics; and a new ergonomically correct chair for Plaintiff. Plaintiff was told by Steve Milewski he did not have a real injury; and that he would not honor his restrictions.” (TAC, ¶ 68.) Plaintiff alleges that “Defendants’ conduct, as alleged, violated FEHA, Government Code section 12900, et seq., and defendants committed unlawful employment practices, including by: a. Harassing plaintiff and/or creating a hostile work environment, in whole or in part on the basis of plaintiff’s age, race/ethnicity, prior complaints and/or disability; race, national origin, and/or color, in violation of Government Code section 12900 et seq.)…” (TAC, ¶ 167.)

Based on the foregoing, the Court does not find that the County has demonstrated that Plaintiff’s harassment cause of action fails to state facts sufficient to constitute a cause of action. The Court thus overrules the demurrer to this cause of action.

“¿It is an unlawful employment practice . . . (a) [f]or an employer, because of the . . . 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 of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment . . . or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.¿” (¿¿Gov. Code, § 12940, subd. (a)¿¿.) A cause of action for discrimination requires alleging membership in a protected class, facts showing that an employee “¿was qualified for the position he sought or was performing competently in the position he held,¿” facts showing that he or she “¿suffered an adverse employment action,¿” and facts showing an employer’s discriminatory motive in taking the adverse employment action. (¿¿Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355¿¿.)

The County asserts that Plaintiff “has failed to set forth any ultimate facts setting forth a prima facie case of disability, race, and/or age discrimination. He is required to set forth some fact demonstrating that he was subjected to discrimination because of his various protected classifications. The fact that [Plaintiff] did not like his assignments is not enough.” (Demurrer at p. 15:14-17.)

However, in the first cause of action, Plaintiff alleges that “[i]n or about 2015, Plaintiff was struck while in his work vehicle while working by a truck during his normal shift. Plaintiff injured his neck and back during this accident. He promptly notified his supervisors, one of which came to the accident site. This resulted in a bulging disc and a pinched nerve that caused severe and radiating pain in his neck and lower back.” (TAC, ¶ 101.) Plaintiff alleges that “when faced with undisputed, and indisputable, medical and physical evidence, Defendants had to agree – and did agree – that Plaintiff suffered from a protected disability, which required reasonable accommodations.” (TAC, ¶ 106.) Plaintiff alleges that “[t]he reasonable accommodations that Plaintiff needed consisted of an ergonomic work chair, a short desk to sit at, a standing desk to periodically stand to perform work, an ergonomic computer workstation, and related ergonomic computer accessories.” (TAC, ¶ 107.) Plaintiff further alleges that “[d]espite uncontroverted medical evidence establishing that Plaintiff needed each of these accommodation so that her [sic] doctors could control his condition, and so that work did not make it worse, Defendants unceremoniously took them away.” (TAC, ¶ 108.) In addition, as set forth above, in the “factual allegations” section of the TAC, Plaintiff alleges that “[a]fter Plaintiff’s doctor gave him workspace restrictions upon returning from leave in June 2020; he was provided a number of physical accommodations, including at his cubicle in headquarters; his computer at headquarters including ergonomics; and a new ergonomically correct chair for Plaintiff. Plaintiff was told by Steve Milewski he did not have a real injury; and that he would not honor his restrictions. Plaintiff [sic] work restriction papers were not given to HR by his supervisors. Steve Milewski took these away from Plaintiff when he transferred him to South Whittier.” (TAC, ¶ 68.) The County does not appear to address these allegations in the demurrer.

The County also cites to Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1054-1055, where the California Supreme Court noted that “[a]s the high court recognized in Harris, the determination of what type of adverse treatment properly should be considered discrimination in the terms, conditions, or privileges of employment is not, by its nature, susceptible to a mathematically precise test, and the significance of particular types of adverse actions must be evaluated by taking into account the legitimate interests of both the employer and the employee. 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 sections 12940(a) and 12940(h).”

The County asserts that here, Plaintiff’s “vague claims of having no ‘resources’ out in the field was evidently an inconvenience with his co-workers.” (Demurrer at p. 15:24-25.) But as set forth above, Plaintiff alleges that “[a]fter Plaintiff’s doctor gave him workspace restrictions upon returning from leave in June 2020; he was provided a number of physical accommodations, including at his cubicle in headquarters; his computer at headquarters including ergonomics; and a new ergonomically correct chair for Plaintiff. Plaintiff was told by Steve Milewski he did not have a real injury; and that he would not honor his restrictions…” (TAC, ¶ 68.)

The County also asserts that Plaintiff “ignores the ERCOM arbitration, and the conclusion he is not entitled to an Additional Responsibility Bonus. This also nullifies his claim, given that administrative and arbitration proceedings are also afforded issue preclusion effect.” (Demurrer at p. 15:26-28.) In support of this proposition, the County cites to Castillo v. City of Los Angeles (2001) 92 Cal.App.4th 477, 481, where the Court of Appeal noted that “[i]ssue preclusion prevents relitigation of issues argued and decided in prior proceedings. The threshold requirements for issue preclusion are: (1) the issue is identical to that decided in the former proceeding, (2) the issue was actually litigated in the former proceeding, (3) the issue was necessarily decided in the former proceeding, (4) the decision in the former proceeding is final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the former proceeding. When those requirements are met, the propriety of preclusion depends upon whether application will further the public policies of preservation of the integrity of the judicial system, promotion of judicial economy, and protection of litigants from harassment by vexatious litigation. Issue preclusion is not limited to barring relitigation of court findings. It also bars the relitigating of issues which were previously resolved in an administrative hearing by an agency acting in a judicial capacity.” (Internal quotations and citations omitted.) The Court notes that although the County cites to Castillo, the County does not apply any of the threshold requirements for issue preclusion to the claims at issue here. Thus, the Court does not find that the County has shown that any of the causes of action of the TAC are barred under the doctrine of issue preclusion.

Based on the foregoing, the Court does not find that the County has demonstrated that the discrimination cause of action fails to state facts sufficient to constitute a cause of action. The Court thus overrules the demurrer to this cause of action.

As an initial matter, as set forth above, the Court overruled the County’s demurrer to the fifth cause of action for retaliation alleged in the SAC. (See March 13, 2023 Order.) Plaintiff appears to assert in the opposition that the Court should accordingly not consider the instant demurrer to the retaliation cause of action alleged in the TAC.

The Court notes that in Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1210, “Carlton contend[ed] the trial court erred by sustaining the demurrer as to the breach of contract cause of action in the SAC because the trial court overruled the demurrer to the breach of contract cause of action in the FAC, and no changes were made to the cause of action in the SAC.” The Court of Appeal in Carlton noted that “[t]he Sixth District Court of Appeal has also concluded, ‘[A] party is within its rights to successively demur to a cause of action in an amended pleading notwithstanding a prior unsuccessful demurrer to that same cause of action,’” and found that “[g]iven the foregoing reasoning and rules from this court and others, the trial court could properly consider the demurrer to the entire SAC. When Carlton filed the SAC, he exposed himself to the possibility of a demurrer being filed and sustained to the entire SAC. Accordingly, we conclude the trial court did not err by sustaining the demurrer to the breach of contract cause of action.” (Id. at p. 1211.) Accordingly, the Court will consider the County’s demurrer to the retaliation cause of action in the TAC here.

In the instant demurrer, the County states that it “respectfully requests the court re-review [Plaintiff’s] retaliation claim,” asserting that “[a]ll ‘adverse actions’ prior to at least June 18, 2019 are barred, in light of his allegation of ‘banishment’ from office duties as of June 2, 2018.” (Demurrer at p. 16:3-5.)[1] The County also asserts, without providing any further analysis, that Plaintiff “failed to set forth any causal link between an ‘adverse employment action’ and his alleged protected activity.” (Demurrer at p. 16:10-11.)

But as noted in the Court’s March 13, 2023 Order on the County’s previous demurrer to the SAC, Plaintiff also 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.” (TAC, ¶ 43.) 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, this time San Pedro.” (TAC, ¶ 85.)

The County also asserts that “the fact he did not like the cleanliness (or the neighborhood) cannot fall under the definition of an ‘adverse employment action.’” (Demurrer at p. 16:11-12.) But as set forth above, Plaintiff also alleges 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.” (TAC, ¶ 43.) 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, this time San Pedro.” (TAC, ¶ 85, emphasis added.)

Based on the foregoing, the Court overrules the County’s demurrer to the retaliation cause of action.

In the demurrer, the County asserts that Plaintiff “seems to allege that he could not perform the essential functions of his position – his desired accommodations (ergonomic desk accommodations) are irrelevant to his duties as a Contract Monitor.” (Demurrer at p. 17:13-15.) The Court finds that this is a factual argument that is not appropriate at the demurrer stage. The Court notes that “[t]he purpose of a demurrer is to test the legal sufficiency of a pleading, not to test the¿evidence or other extrinsic matters.” (McHugh v. Howard (1958) 165 Cal.App.2d 169, 173-174.)

The County also asserts that Plaintiff “also admits taking leave periods, apparently as needed and without repercussions.” (Demurrer at p. 17:15-16.) The County cites to the allegation in the TAC that “Plaintiff was out on approved medical leave from March 2020 thru June 7, 2020.” (TAC, ¶ 55.) But Plaintiff also alleges in the second cause of action that “Plaintiff was diagnosed with a physical disability in his back and neck as the result of a bulging disc and pinched nerve that caused radiating pain as a result of a vehicle on vehicle accident that Plaintiff was victim to while working and in his work truck.” (TAC, ¶ 125.) Plaintiff alleges that “[u]pon returning to work following the accident, Plaintiff was temporarily provided reasonable accommodations in the form of an ergonomic work chair, a short desk to sit at, a standing desk to periodically stand to perform work, an ergonomic computer workstation, standing and sitting restrictions, not lifting over 25 pounds, and related ergonomic computer accessories.” (TAC, ¶ 130.) Plaintiff alleges that “Defendants stripped away Plaintiff’s reasonable accommodations despite the ongoing and continuous need for them,” and that “following June 2, 2018 Defendants Failed to Accommodate Plaintiff taking his accommodations.” (TAC, ¶¶ 132, 135.)

Based on the foregoing, the Court overrules the County’s demurrer to the second cause of action for failure to accommodate.

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).)

In the demurrer, the County asserts that Plaintiff “not only fails to allege a disability (aside in the most conclusory fashion), but he also fails to allege that the County failed to interact or accommodate his alleged disability.” (Demurrer at p. 18:15-17.)

But Plaintiff alleges that he was “diagnosed with a physical disability in his back and neck as the result of a bulging disc and pinched nerve that caused radiating pain as a result of a vehicle on vehicle accident that Plaintiff was victim to while working and in his work truck.” (TAC, ¶ 149.) Plaintiff alleges that “[i]nstead of engaging in the interactive process, Defendants took adverse action against Plaintiff, including the failure to accommodate his disabilities.” (TAC, ¶ 161.) Plaintiff further alleges that “[t]here was nothing done by way of the interactive process for the Whittier Yard nor his work vehicle to ensure that the Defendants would try to accommodate his disabilities based on his new work location and transfer from Headquarters, where he had an office with the appropriate accommodations.” (TAC, ¶ 160.)

Based on the foregoing, the Court overrules the demurrer to the third cause of action for failure to engage in the interactive process.

Based on the foregoing, the County’s demurrer to the TAC is overruled in its entirety. The Court orders the County to file and serve an answer to the TAC within 10 days of the date of this Order.¿

[1]As set forth above, “¿¿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, supra, 108 Cal.App.4th at p. 1047.)

Superior Court of California

County of Los Angeles

Department 50