Case Number: BC672809 Hearing Date: April 06, 2018 Dept: 32

Rosa Livier alvara,

Plaintiff,

v.

los angeles unified school district,

Defendant.

Case No.: BC672809

Hearing Date: April 6, 2018

[TENTATIVE] order RE:

Defendant’s motion for judgment on the pleadings

BACKGROUND

Plaintiff Rosa Alvara (“Plaintiff”) alleges that she was discriminated and retaliated against by her previous employer Defendant Los Angeles Unified School District (“Defendant.”) Plaintiff alleges that Defendant refused to accept her permissive leave paperwork, refused to acknowledge Plaintiff’s disability extension and terminated Plaintiff for exercising her right to request accommodations. (FAC ¶32.) Plaintiff asserts causes of action for (1) discrimination; (2) retaliation; (3) failure to prevent discrimination and retaliation; (4) failure to provide reasonable accommodations; (5) failure to engage in a good faith interactive process; (6) declaratory judgment; and (7) failure to permit inspection of personnel and payroll records.

DISCUSSION

A motion for judgment on the pleadings may be made on the same grounds as those supporting a general demurrer, i.e., that the complaint fails to state facts sufficient to constitute a legally cognizable claim. (Stoops v. Abbassi (2002) 100 Cal. App. 4th 644, 650.)

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 all of 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.)

Request for Judicial Notice

Defendant’s request for judicial notice of Plaintiff’s Declaration is GRANTED pursuant to Cal. Evid. Code §452.

First Cause of Action- Disability Discrimination

The essential elements of a disability discrimination claim are that the employee (1) has as disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) the defendant’s adverse employment decisions; (4) because of Plaintiff’s actual or perceived disability. (Faust v. Cal. Portland Cement Co. (2007) 150 Cal.App.4th 864, 886.) A plaintiff presents sufficient proof of a prima facie case of discrimination based on disability, where evidence showed the employer’s knowledge of the disability. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 314.)

Defendant contends that Plaintiff could not perform the essential duties of the job with or without reasonable accommodation because attendance is an essential duty of the job and Plaintiff does not allege that she is ready to return to work. However, Plaintiff alleges that she could have worked with accommodations. (Complaint ¶22; 33.)

Defendant contends that Plaintiff cannot establish a cause of action for disability discrimination because Education Code §45192 divests the District of any discretion when a classified employee shall be separated and that there was no adverse employment action because Plaintiff could request reinstatement at any time during the 39 months she was separated. The provision states, “When all available leaves of absence, paid or unpaid, have been exhausted and if the employee is not medically able to assume the duties of his or her position, the employee shall, if not placed in another position, be placed on a reemployment list for a period of 39 months. When available, during the 39-month period, the employee shall be employed in a vacant position in the class of the employee’s previous assignment over all other available candidates…” (Cal. Ed. Code §45192(g).) However, these arguments are not the proper basis for a motion for judgment on the pleadings as they look beyond the facts as alleged in Plaintiff’s complaint.

Further, Defendant contends that Plaintiff does not plead facts alleging animus so the claim fails, however this is not a requirement for disability discrimination claims. (Wallace v. County of Stanislaus (2016) 245 Cal.App.4th 109, 128.)

Plaintiff alleges that a voluntary resignation was processed on Plaintiff’s behalf effective August 15, 2016 (Complaint ¶31.) Plaintiff alleges that this was a result of the principal’s refusal to sign additional permissive leave paperwork that was supported by Plaintiff’s doctor’s note. (Complaint ¶24-30.) Plaintiff alleges that Defendant had knowledge of her disability. (Complaint ¶21.) Thus, Plaintiff has sufficiently alleged facts that there was an adverse employment decision because of her actual or perceived disability.

As such, Defendant’s motion as to the first cause of action is OVERRULED.

Second Cause of Action – Retaliation

The elements of a retaliation claim under the Fair Employment and Housing Act (“FEHA”) are (1) the plaintiff engaged in a “protected activity” under the FEHA; (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.)

Plaintiff alleges that she engaged in the protected activity of complaining about and protesting Defendant’s discriminatory and harassing conduct towards Plaintiff based upon Plaintiff’s age, disability, medical condition and use of medical leave. (Complaint ¶54.) As set forth above, the Plaintiff has sufficiently pled that she was subject to an adverse employment action. Further, Plaintiff has alleged that the motivating reason for the decision to subject Plaintiff to the adverse employment action was engaging in protected activity. (Complaint ¶56.) Defendant contends the same deficiencies that plagued the first cause of action are true of the second cause of action. However, the Court disagrees for the same reasoning as above.

As such, Defendant’s motion for judgment on the pleadings to the second cause of action is OVERRULED.

Third Cause of Action- Failure to Prevent Discrimination and Retaliation

Plaintiff has alleged facts sufficient to constitute an action for discrimination and retaliation at the pleadings stage and as such, her third cause of action for failure to prevent discrimination or retaliation are also sufficiently pled. (Complaint ¶62-64.)

As such, Defendant’s motion for judgment on the pleadings to the third cause of action is OVERRULED.

Fourth Cause of Action- Failure to Accommodate

The elements of a failure to accommodate cause of action are that (1) Plaintiff has a disability covered by the FEHA; (2) Plaintiff is a qualified individual, i.e. they can perform the essential functions of the position; and (3) the employer failed to reasonably accommodate the plaintiff’s disability. (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

Plaintiff alleges that she had a disability (Complaint ¶69), that she can perform the essential functions of the position (Complaint ¶ ¶ 22; 33), and that the employer failed to reasonably accommodate the plaintiff’s disability by denying her six more weeks of disability leave. (Complaint ¶ ¶27; 32; 70.) Whether Plaintiff’s request for six more weeks of disability leave was a reasonable accommodation is not a proper inquiry at the pleadings stage.

As such, Defendant’s motion for judgment on the pleadings to the fourth cause of action is OVERRULED.

Fifth Cause of Action- Failure to Engage in the Good Faith Interactive Process

The elements of a cause of action to failure to engage in an interactive process are: (1) the plaintiff has a disability or medical condition that was known to the employer; (2) the plaintiff requested that his employer make a reasonable accommodation for that disability/medical condition so she would be able to perform the essential job requirements; (3) the Plaintiff was willing to participate in an interactive process to determine whether a reasonable accommodation could be made; (4) the employer failed to participate in a timely, good faith interactive process with the Plaintiff; (5) the Plaintiff was harmed; and (6) the employer’s failure to engage in a good faith interactive process was a substantial factor in causing the Plaintiff’s harm. (Gov. Code §12940(n).)

Defendant contends that Plaintiff was granted a preliminary accommodation of being able to take disability leave, but that she did not request any other accommodation. (Complaint ¶21.) However, Plaintiff’s complaint clearly states that she requested additional permissive leave for six weeks and filled out the appropriate paperwork but it was not approved. (Complaint ¶¶24, 26, 28.) Defendant contends that Plaintiff could return to work, however she explicitly states otherwise in the Complaint ( Id. at ¶22 and ¶33.)

As such, Defendant’s motion for judgment on the pleadings to the fifth cause of action is OVERRULED.

Sixth Cause of Action- Declaratory Relief

Plaintiff has alleged facts sufficient to constitute an action for discrimination and retaliation in violation of the FEHA at the pleadings stage and as such, her sixth cause of action for declaratory relief is also sufficiently pled. (Complaint ¶85.)

Defendant’s motion for judgment on the pleadings to the sixth cause of action is OVERRULED.

Conclusion

For the foregoing reasons, Defendant’s motion for judgment on the pleadings is DENIED in its entirety.