Judge Thomas D. Long, Case 22STCV24146 2023-05-23 Tentative Ruling

On September 26, 2022, Plaintiff Andrew Gibson filed a first amended complaint (“FAC”) against Defendant Los Angeles County Office of Education alleging six causes of action under the Fair Employment and Housing Act (“FEHA”) and the Labor Code: (1) discrimination; (2) retaliation; (3) failure to make reasonable accommodations; (4) failure to engage in the interactive process; (5) failure to prevent and/or remedy discrimination; and (6) nonpayment of wages and waiting time penalties.

On October 26, 2022, Defendant filed a demurrer to the second through sixth causes of action.

When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) A special demurrer for uncertainty is disfavored and will be sustained only where the pleading is so “unfairly vague” that the defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Defendant argues that the FAC does not alleges facts to meet the heightened pleading standard for public entities. (Demurrer at p. 4.) “[T]o state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.” (Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819; see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [“[F]acts in support of each of the requirements of a statute upon which a cause of action is based must be specifically pled.”]; Hawkins v. TACA Internat. Airlines, S.A. (2014) 223 Cal.App.4th 466, 478 [“[S]imply parroting the language of [a statute] in the complaint is insufficient to state a cause of action under the statute.”].)

A. The FAC Alleges Sufficient Facts to Plead a Claim of Retaliation (Second Cause of Action).

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.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Defendant contends that the only supporting facts about Plaintiff protected activity of opposing conduct prohibited by FEHA are related to Plaintiff contacting a board member after his termination to complain about the alleged discrimination, and Plaintiff cannot allege that Defendant subjected him to an adverse employment action as the result of this after-the-fact contact. (Demurrer at pp. 5-6.) That is not correct. Plaintiff alleges that he requested a reasonable accommodation to work remotely for two months (at the recommendation of his doctor) after an ankle injury that could result in permanent damage if he placed too much pressure on his foot. (FAC ¶ 47.) Defendant retaliated by wrongfully terminating his employment based on purported “performance” issues. (FAC ¶¶ 47-48.) An employer may not retaliate against an employee for requesting a reasonable accommodation. (Gov. Code, § 12940, subd. (m)(2).) Plaintiff alleges sufficient facts to plead this retaliation.

In reply, Defendant argues the merits of the denial of accommodation and contends that “nothing in the email cited [from Plaintiff’s supervisor] indicates that LACOE made the decision to terminate Plaintiff in retaliation for his second request for an accommodation.” The truth of the reason given, and whether Defendant had indeed “already made the decision to terminate PLAINTIFF for requesting a second accommodation” are factual matters outside the scope of demurrer.

B. The FAC Alleges Sufficient Facts to Plead Claims of Failure to Accommodate and Failure to Engage in the Interactive Process (Third and Fourth Causes of Action).

“The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability. [Citation]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766.) “Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.] While a claim of failure to accommodate is independent of a cause of action for failure to engage in an interactive dialogue, each necessarily implicates the other. [Citation.]” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 242.) An employer is liable for failing to accommodate when it is the one responsible for the breakdown in the interactive process; an employer may prevail where the employer does everything in its power to engage but the employee does not engage in further discussions in good faith. (See Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.)

Defendant argues that Plaintiff was a new hire on a multi-million-dollar project where all employees were required to work from the office, so “it is clear that Plaintiff’s request was not reasonable.” (Demurrer at p. 6.) Defendant also argues that “[i]t is clear based on the email sent by Plaintiff’s supervisor as well as the letter sent following the interactive process meeting that providing Plaintiff with an accommodation would be an undue hardship to LACOE.” (Reply at p. 3.) This is conclusory, and the reasonableness of Plaintiff’s request is a factual issue.

Additionally, Defendant argues that Plaintiff did not require remote work because his restrictions were “Non weight bearing x 8 weeks on affected leg. Crutches, knee scooter as needed.” (Demurrer at p. 6; FAC ¶ 18.) According to Defendant, “Plaintiff has failed to allege any facts that LACOE refused to provide these accommodations or that Plaintiff requested anything beyond remote work.” (Demurrer at p. 6.) However, the updated Work Status Report containing these restrictions was sent to Defendant on November 9, 2021. (FAC ¶ 18.) Plaintiff’s request for a reasonable accommodation of remote work was sent to Defendant earlier, based on his orthopedic doctor’s November 3, 2021 recommendation that Plaintiff “would benefit from remote work if available.” (FAC ¶¶ 13-14.) Plaintiff sufficiently alleges that he made this request for remote work and that Defendant failed to accommodate it.

Regarding the failure to engage in the interactive process, Defendant argues that “the only fact supporting Plaintiff’s failure to engage in the interactive process is Plaintiff’s reliance on the alleged memo dated November 8, 2022 in which LACOE supervisor merely states she cannot permit remote work.” (Demurrer at p. 6.) According to Defendant, “it is irrelevant because the alleged memo does not state that LACOE won’t accommodate Plaintiff, only that it will not grant the unreasonable accommodation of remote work.” (Demurrer at pp. 6-7.) This could support an inference that Defendant did decide, before the interactive process, that it would not accommodate Plaintiff, and thus the subsequent meeting was meaningless and pretextual. (See FAC ¶¶ 18-19.) Defendant’s argument again goes to the merits of the claim, outside the scope of demurrer.

C. The FAC Alleges Sufficient Facts to Plead a Claim of Failure to Prevent Discrimination and Retaliation (Fifth Cause of Action).

Failure to prevent discrimination or retaliation in violation of FEHA requires that (1) the plaintiff was an employee of defendant, (2) the plaintiff was subjected to discrimination or retaliation in the course of employment, (3) the defendant failed to take all reasonable steps to prevent the discrimination or retaliation, (4) the plaintiff was harmed, and (5) the defendant’s failure to take all reasonable steps to prevent discrimination and/or retaliation was a substantial factor in causing plaintiff’s harm. (CACI 2527; see Gov. Code, § 12940, subd. (k).)

Defendant argues that Plaintiff does not allege any facts demonstrating that Defendant was aware of any alleged discrimination complaints prior to Plaintiff’s termination or any facts about how Defendant failed to prevent discrimination or retaliation. (Demurrer at p. 7.) Defendant’s cited cases involve the evidentiary support for a Workers’ Compensation Appeals Board award and a grant of summary judgment, not the pleading standard. (Demurrer at p. 7 [citing Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021]; Reply at p. 4 [citing Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860].)

The statute states that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code, § 12940, subd. (k).) As discussed above, Plaintiff has sufficiently alleged retaliation, and Defendant does not challenge the sufficiency of Plaintiff’s claim for discrimination. At the pleading stage, Plaintiff has stated sufficient facts to allege this statutory liability.

D. The FAC Does Not Allege Facts Showing Willful Nonpayment of Wages (Sixth Cause of Action).

If an employer willfully fails to pay owed wages to an employee who is discharged or who quits, the wages shall continue as a penalty. (Lab. Code, § 203, subd. (a).)

Defendant argues that Plaintiff does not plead any facts to demonstrate he was owed wages at the time of his termination, nor does he plead any facts showing that Defendant willfully failed to pay Plaintiff. (Demurrer at p. 8.) Defendant also argues that the allegation that Defendant reviewed Plaintiff’s pay history and determined that he had been overpaid (FAC ¶ 31) demonstrates a lack of intent to withhold wages. (Demurrer at p. 8.)

Plaintiff was informed that he was being terminated on December 9, 2021, effective December 17, 2021, and he was not paid for part of November or December while he was still employed by Defendant. (FAC ¶¶ 91-92.) After his termination, he did not receive any information regarding final pay. (FAC ¶ 31.) This is sufficient to allege the nonpayment of wages. However, Plaintiff does not allege any facts showing that Defendant willfully failed to pay the wages, as required for the penalty.

The demurrer to the sixth cause of action is SUSTAINED with 20 days’ leave to amend. The demurrer is otherwise OVERRULED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court