2017-00221678-CU-OE

Diane Shelton vs. California State Assembly

Nature of Proceeding: Hearing on Demurrer to Plaintiff’s Second Amended Complaint

Filed By: Kennedy, John T.

Defendant California State Assembly’s (“Defendant”) demurrer to plaintiff Diane Shelton’s (“Plaintiff”) Second Amended Complaint (“SAC”) is ruled upon as follows.

Defendant’s request for judicial notice is granted.

In this employment action, Plaintiff filed her original Complaint on November 2, 2017, alleging six causes of action against Defendant. Plaintiff filed her First Amended Complaint (“FAC”) on January 2, 2018, alleging eight causes of action against Defendant. The parties stipulated to allow Plaintiff leave to file the SAC, which is the subject of this instant motion. Plaintiff filed the SAC on May 31, 2018, alleging the following eight causes of action against Defendant: (1) violation of the Fair Pay Act (Equal Pay Act) based on sex; (2) violation of the Fair Pay Act based on race; (3) retaliation under the Fair Pay Act; (4) FEHA gender discrimination; (5) FEHA race discrimination; (6) FEHA retaliation; (7) failure to prevent discrimination and retaliation under FHEA; and (8) FEHA disability discrimination and failure to accommodate.

Defendant demurs to the first, second, and third causes of action on the grounds Plaintiff failed to allege facts demonstrating compliance with the Government Claims Act. (Gov. Code §§ 810 et seq., Code Civ. Proc. § 430.10(e).) Defendant demurs to the third, fourth, fifth, sixth, seventh, and eighth causes of action on the grounds they fail to state facts sufficient to constitute a cause of action and/or Plaintiff failed to exhaust her administrative remedies. (Code Civ. Proc. § 430.10(e).)

Legal Standard

The purpose of a demurrer is to test the legal sufficiency of a claim. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) The pleading rules applicable to demurrers are now familiar and well established. Pleadings are to be liberally construed. (Code Civ. Proc. § 452) A demurrer admits the truth of all material facts properly pled and the sole issue raised by a general demurrer is whether the facts pled state a valid cause of action – not whether they are true. (Serrano v. Priest (1971) 5 Cal. 3d 584, 591.)

A demurrer may be sustained only if the complaint lacks any sufficient allegations to entitle the plaintiff to relief. (Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 778.) “Plaintiff need only plead facts showing that he may be entitled to some relief . . . , we are not concerned with plaintiff’s possible inability or difficulty in proving the allegations of the complaint.” (Highlanders, Inc. v. Olsan (1978) 77 Cal. App. 3d 690, 696-697.) “[Courts] are required to construe the complaint liberally to determine whether a cause of action has been stated, given the assumed truth of the facts pleaded.” (Picton v. Anderson Union High School Dist. (1996) 50 Cal. App. 4th 726.)

Compliance with the Government Claims Act – First, Second, and Third Causes of Action Pursuant to the Fair Pay Act – SUSTAINED with leave to amend

Defendant contends Plaintiff’s first, second, and third causes of action brought pursuant to the Fair Pay Act are barred because Plaintiff has failed to timely present her claim pursuant to the Government Claims Act.

Under the Government Claims Act, a claimant must present a civil complaint for money damages to the Government Claims Board before filing a lawsuit against a public entity or public employee, including a judicial officer. (Gov’t Code §§ 810.2,

811.2, 811.4, 911.2, 945.4, and 950.2.) A claim relating to a cause of action for death or injury to a person or to personal property or growing crops must be presented to the public entity no later than six months after the accrual of the cause of action, and a claim relating to any other cause of action must be presented no later than one year after the accrual of the cause of action. (Govt. Code §911.2(a).) Failure to allege compliance with the presentation requirements of the Act and that the claim has been rejected is fatal to a cause of action. (State v. Superior Court (2004) 32 Cal.4th 1234, 1240-1241.)

Plaintiff contends her claims for back wages pursuant to the Fair Pay Act are specifically exempt pursuant to Government Code section 905(c), which exempts “claims by public employees for fees, salaries, wages, mileage, or other expenses and allowances.” However, as noted by Defendant on reply, this section concerns “required presentation of claims against local public entities” and the exceptions thereto. (See Gov. Code § 905.) “Local public entity” is defined in the statute as “a county, city, district, public authority, public agency, and any other political subdivision or public corporation in the State, but does not include the State.” (Gov. Code § 900.4 (emphasis added).) Therefore, the exception set forth in section 905(c) does not appear to apply to the State Defendant in this case. Courts look to the plain meaning of the actual words of the law, “whatever may be thought of the wisdom, expediency, or policy of the act.” (People v. Weidert (1985) 39 Cal.3d 836, 843, quoting Woodmansee v. Lowery (1959) 167 Cal.App.2d 645, 652.) ‘[A]s this court has often recognized, the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government . . . .’ (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 675 (conc. opn. by Werdegar, J.).)” (California Teachers Assn. v. Governing Bd. of 27 Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632-633.)

Moreover, while Plaintiff contends she substantially complied with the Government Claims Act and has already filed a formal government tort claim, these allegations are not pleaded in the SAC. Plaintiff supports these allegations only through extrinsic evidence. A demurrer “tests the pleadings alone and not the evidence or other extrinsic matters.” (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.” (McKenney v. Purepac Pharm. Co. (2008) 162 Cal.App.4th 72, 79.) Extrinsic evidence may not properly be considered on demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

Accordingly, Defendant’s demurrer to the first, second, and third causes of action on the ground that Plaintiff has failed to allege compliance with the Government Claims

Act is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Third Cause of Action for Retaliation in Violation of the Fair Pay Act – SUSTAINED with leave to amend

Defendant also contends Plaintiff’s third cause of action for retaliation in violation the Fair Pay Act fails because the Fair Pay Act was only made applicable to public employers as of January 1, 2018, there is no indication the amendment applies retroactively, Plaintiff has failed to allege any retaliation occurring after January 1, 2018, and any alleged retaliation occurring in 2018 is insufficient.

“As a general rule, statutes do not operate retroactively ‘unless the Legislature plainly intended them to do so.’” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183, quoting Western Security Bank v. Superior Court (1997) 15 Cal.4th 232, 243.) The Legislature, of course, is well acquainted with this fundamental rule, and when it intends a statute to operate retroactively, it uses clear language to accomplish that purpose. (Varteles v. Holder (2012) 132 S. Ct. 1479, 1486-1492; Myers v. Phillip Morris Companies, Inc. (2002) 28 Cal. 4th 828, 840; Harpole v.Conrad N. Hilton Foundation (1996) 44 Cal. App. 4th 890, 906-907.)

Nonetheless, a statute that merely clarifies existing law “may be applied to transactions predating its enactment ‘without being considered retroactive’ because it ‘is merely a statement of what the law has always been.’” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 183, quoting Riley v. Hilton Hotels Corp. (2002) 100 Cal.App.4th 599, 603.) “However, a statute might not apply retroactively when it substantially changes the legal consequences of past actions, or upsets expectations based in prior law.” (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (emphasis added).) Absent some clear policy requiring the contrary, statutes modifying liability in civil cases are not to be construed retroactively. (Robinson v. Pediatric Affiliates Medical Group, Inc. (1979) 98 Cal. App. 3d 907, 912 (emphasis added).) “[T]he interpretation of a statute is an exercise of the judicial power the Constitution assigns to the courts.” (Western Security Bank, supra, 15 Cal.4th at 244.)

Indeed, in this case, applying the new amendment to impose liability that did not otherwise exist would be a retroactive application because it would “attach[] new legal consequences to events completed before its enactment.” (Landgraf v. USI Film Products (1994) 511 U.S. 244, 270 [128 L. Ed. 2d 229, 114 S. Ct. 1483] .) Specifically, it would “increase a party’s liability for past conduct … .” ( Id. at p. 280; accord, Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 839.)

In 2017, Labor Code section 1197.5 was amended to add subsection (l), which reads: “As used in this section, “employer” includes public and private employers. Section 1199.5 does not apply to a public employer.” Although Plaintiff contends this amendment “clarified” existing law, there is no such statement in the statute itself or in the legislative history. Further, the Court is not persuaded that the term “employer” was ambiguous and, therefore, that the amendment was intended as a clarification and should have retroactive effect. There is no indication that this expansion of civil liability upon public employers was to be applied retroactively. As the Legislature is well acquainted with the general rule that statutes do not operate retroactively unless the Legislature clearly intends them to, the Legislature could have made clear any

retroactivity that was intended. In addition, the amendment is a substantial change to the legal consequences of past actions and to apply it retroactively without clear language from the Legislature to do so would upset expectations based in prior law. Accordingly, the Court finds the amendment does not apply retroactively.

Turning now to Plaintiff’s allegations of retaliation, most concern alleged conduct that occurred prior to the application of the Fair Pay Act to public employers. (SAC ¶¶ 9-11, 13, 37, 38.) The only allegation regarding conduct by Defendant that occurred in 2018 provides “Defendant has retaliated against Plaintiff by denying her a reasonable accommodation pursuant to [FEHA]. Specifically, Plaintiff provided Defendant with a Work Status Report from her physician placing Plaintiff off work from February 28, 2018, to May 28, 2018. On or around March 22, 2018, Defendant informed Plaintiff that it will not grant any further medical leave beyond June 30, 2018.” (SAC ¶ 36.) There are no allegations, however, that Plaintiff requested leave beyond June 30, 2018. Plaintiff’s allegations appear to be based on a hypothetical [or at least unarticulated in the complaint] request for additional medical leave, which is insufficient to constitute a cause of action for retaliation. Accordingly, Defendant’s demurrer on this ground is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Exhaustion of Administrative Remedies – Fourth, Fifth, and Sixth Causes of Action for FEHA Gender Discrimination, FEHA Race Discrimination, and FEHA Retaliation – SUSTAINED with leave to amend

Defendant demurs to Plaintiff’s fourth, fifth, and sixth causes of action for FEHA gender discrimination, FEHA race discrimination, and FEHA retaliation on the grounds that Plaintiff failed to exhaust her administrative remedies. Specifically, Defendant contends Plaintiff alleges she was definitively told by the Assembly’s then-Chief Administrative Officer in December of 2013 that she would never be paid at wage rates commensurate with Mr. Morely. (SAC ¶¶ 9-11.) Thus, Defendant reasons at this time the alleged acts had reached a degree of permanence because Plaintiff was on notice that further efforts to end the unlawful conduct would be in vain, yet Plaintiff did not file her DFEH complaint until November 2, 2016, nearly three years later. (SAC ¶ 17.) Defendant further argues Plaintiff vaguely alleges that as a result of her complaint, the Assembly began to micromanage her work, made her male counterpart a supervisor, and threatened her with termination, but there are no allegations that the claimed retaliation occurred within the year preceding the filing of her DFEH complaint. (SAC ¶¶ 14-15, 17.)

The doctrine of exhaustion of administrative remedies furthers a number of important societal and governmental interests, (Jonathan Neil & Associates, Inc. v. Jones, (2004) 33 Cal. 4th 917) including: (1) bolstering administrative autonomy (Id.); (2) permitting the agency to resolve factual issues, apply its expertise and exercise statutorily delegated remedies (Rojo v. Kliger (1990) 52 Cal. 3d 65); (3) mitigating damages (Ibid

.); (4) promoting judicial economy by unearthing the relevant evidence and providing a complete record which the court may review (Ibid.); and (5) reducing the scope of subsequent litigation or possibly avoid litigation. (Wms. v. Housing Authority of City of Los Angeles (2004) 121 Cal.App.4th 708.)

It is also stated that a basic purpose for the exhaustion doctrine is to lighten the burden of overworked courts in cases where administrative remedies are available,(Citizens for Open Government v. City of Lodi, (2006) 144 Cal. App. 4th 865) particularly where

such administrative remedies are as likely as the judicial remedy to provide the wanted relief, and that the doctrine is designed to protect courts from doing the work of administrative agencies, and requires litigants first to give the agency an opportunity to rule on the problem where the agency is capable of doing so and the administrative remedy is effective. The doctrine provides a preliminary sifting process, (Bozaich v. State of California (1973) 32 Cal. App. 3d 688) which provides an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review (State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674); the decision making body is entitled to learn the contentions of interested parties before litigation is instituted.(Id.) Even where the administrative remedy may not resolve all issues or provide the precise relief requested by a plaintiff, the exhaustion doctrine is still viewed with favor because it facilitates the development of a complete record that draws on administrative expertise and promotes judicial efficiency.

The doctrine of “exhaustion of administrative remedies requires that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act. (Morgan v. Regents of University of California (2001) 88 Cal.App.4th 52, 63.) The doctrine is not a matter of judicial discretion, but is a fundamental rule of procedure laid down by courts of last resort, followed under the doctrine of stare decisis, and binding upon all courts. ( Abelleira v. District Court of Appeal (1941)17 Cal.2d 280, 292-293.) The timely filing of an administrative complaint with the DFEH and receipt of a right-to-sue notice is a prerequisite to a civil action under the FEHA. (Gov’t Code § 12965(b); Commodore Home Systems, Inc. v. Sup.Ct. (Brown) (1982) 32 Cal.3d 211, 214.) It has been held that the failure to exhaust this administrative remedy is a “jurisdictional” defect (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1613; and “a jurisdictional prerequisite to resort to the court.” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 70; see Campbell v. Regents of Univ. of Calif. (2005) 35 Cal.4th 311,321.)

Plaintiff contends her claims are not barred due to the doctrine of continuing violations. Under the continuing violation doctrine, if like or related discriminatory treatment has occurred over a period of months or even years, the entire course of discrimination may be actionable if the DFEH charge properly alleges a “continuing violation” and is filed within one year of the most recent act of discrimination. However, the alleged discriminatory acts must be related closely enough to constitute a continuing violation, the relevant distinction is between the occurrence of isolated, intermittent acts and a persistent, ongoing pattern. ((Richards v. CH2MHill, Inc. (2001) 26 Cal. 4th 798.) A continuing violation occurs where the employer’s unlawful actions are: (1) sufficiently similar in kind; (2) have occurred with reasonable frequency; and, (3) have not yet acquired a degree of permanence (i.e., the employer’s statements and actions make it clear to a reasonable employee that any further efforts at informal conciliation will be futile). (Id. at 823; see also Cucuzza v. City of Santa Clara (2002) 104 Cal. App. 4th 1031, 1041.)

Here, Plaintiff alleges she suffered discrimination since February of 1984 and complained to Defendant of wage discrimination in 2011, 2012, and 2013. (SAC ¶¶ 9-11.) She then alleges she was told throughout 2012 and then in December of 2013 that “the Assembly Rules would never approve a pay increase to place her at equal footing with “Kevin” and suggested she leave her position to find a Chief of Staff position with another Assembly Member that would reclassify her position. The then Chief Administrative Officer [Jon Waldie] stated, “otherwise, Rules would not allow

it.” (SAC ¶¶ 10-11.) While Plaintiff generally alleges that “for more than five years” she has requested a more equitable salary, she does not allege the specific “five years” she complained, or that she continued complaining after her discussion with Waldie in December 2013. Based on Plaintiff’s allegations about what Waldie told her in December of 2013, Plaintiff was on notice at that time that any further efforts at informal conciliation would be futile. Waldie told Plaintiff she would never receive a pay increase unless she left her position and found a Chief of Staff position with another Assembly Member. Further, Plaintiff’s vague allegations regarding the micromanagement of her work, making her male counterpart her supervisor, and threatening termination all lack any allegations as to when this conduct occurred. Accordingly, Defendant’s demurrer to the fourth, fifth, and sixth causes of action on this ground are SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Adverse Employment Action – Fourth, Fifth, and Sixth Causes of Action for FEHA Gender Discrimination, FEHA Race Discrimination, and FEHA Retaliation –
OVERRULED

Defendant also demurs to the fourth, fifth, and sixth causes of action on the grounds that Plaintiff has failed to allege an adverse employment action.

To establish a prima facie case of discrimination under FEHA, Plaintiff must establish that: (1) she is a member of a protected class; (2) she qualified for the position sought;

(3) she suffered an adverse employment action; and (4) some other circumstance that suggests discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355; Slatkin v. Univ. of Redlands (1996) 51 Cal.App.4th 345, 367 [applying this standard to FEHA religious discrimination claim].)

To establish a prima facie case of retaliation, the plaintiff must show (1) she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer’s action. (Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1453.) An adverse action is an act by the employer that “materially affects the terms, conditions, or privileges of employment.” (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal. App. 4th 377, 386.)

The FEHA “protects an employee against unlawful discrimination with respect not only to so-called ultimate employment actions such as termination or demotion, but also the entire spectrum of employment actions that are reasonably likely to adversely and materially affect an employee’s job performance or opportunity for advancement in his or her career.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1053-1054.) “Minor or relatively trivial adverse actions or conduct . . . 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 [FEHA’s] antidiscrimination provisions . . . .” (Id. at 1054-1055.)

An adverse employment action materially affects the terms, conditions or privileges of employment, and must be likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. (See Akers v. County of San Diego (2002)

95 Cal.App.4th at 1455 (“[T]o be actionable, the retaliation must result in a substantial adverse change in the terms and conditions of the plaintiff’s employment. A change that is merely contrary to the employee’s interest or not to the employee’s liking is insufficient.”). Work places are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action. (Thomas v. Dep’t. of Corrections (2000) 77 Cal.App.4th 507, 510.) Moreover, “[t]he employment action must be both detrimental and substantial.” (Id.)

“[A]lthough an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claim.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1052.) The proper analysis is not limited to “whether each alleged retaliatory act constitutes an adverse employment action in and of itself.” (Yanowitz, supra, 36 Cal.4th at 1055.) Indeed, “there is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries.” (Id.)

Here, Plaintiff alleges she was discriminated against based on her race and gender and retaliated against for opposing race and gender discrimination. (SAC ¶¶ 44-75.) Plaintiff’s alleged adverse employment actions include that she was paid less than her male Caucasian counterpart and that after she complained, Defendant began to micro-manage her work, made her male counterpart a supervisor, and threatened her with terminating her employment. (SAC ¶¶ 8-14, 49, and 70.) Having work micromanaged, and having another counterpart promoted, while likely angering to an employee, are not sufficiently detrimental and substantial to constitute an adverse employment action. Further, while threatening termination is more serious than the prior allegations, Plaintiff does not allege she was actually terminated and the Court is not persuaded this allegation alone, or even taken together with the other allegations, is sufficient to state an adverse employment action such that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement. That being said, however, Plaintiff’s allegation that she was paid less than her male Caucasian counterpart for performing the same work is an action that materially affects compensation and can be considered an adverse employment action. (Howard v. Washington (9th Cir. 2007) 254 Fed. Appx. 576, 578; Little v. Windermere Relocation, Inc. (9th Cir. 2002) 301 F.3d 958, 970; Fonseca v. Sysco Food Servs. of Arizona, Inc. (9th Cir. 2004) 374 F.3d 840, 847 (“We have recognized that an adverse employment action exists where an employer’s action negatively affects its employee’s compensation”).

Accordingly, the demurrer on this ground is OVERRULED.

As to Defendant’s argument that Plaintiff’s sixth cause of action fails to allege a causal link between her protective activity (her complaints) and the retaliation, the demurrer is OVERRULED. Plaintiff alleges that in response to her complaints, Defendant engaged in various retaliatory acts. (SAC ¶¶ 14, 15, 65, 70.) The Court must accept these allegations as true and for pleading purposes, these allegations are sufficient.

Seventh Cause of Action for Failure to Prevent Discrimination – OVERRULED

Defendant demurs to Plaintiff’s seventh cause of action for failure to prevent

discrimination and retaliation on the grounds that this claim is derivative of Plaintiff’s claims for discrimination based on gender and race and, because those fail, this claim must fail as well. Because the Court has overruled Defendant’s demurrer to the fourth, fifth, and sixth causes of action for FEHA discrimination and retaliation, it must also overrule the demurrer as to this derivative cause of action. The demurrer to the seventh cause of action is OVERRULED.

Eighth Cause of Action for FEHA Disability Discrimination and Failure to Accommodate – SUSTAINED with leave to amend in part and OVERRULED in part

Defendant demurs to Plaintiff’s eighth cause of action on the ground that Plaintiff failed to exhaust her administrative remedies. Defendant contends Plaintiff’s DFEH complaint did not allege disability discrimination. Plaintiff concedes her DFEH complaint did not specifically allege disability discrimination, but argues she has sufficiently exhausted her administrative remedies because a reasonable investigation would have uncovered her claim and her DFEH complaint encompasses any discrimination “like or reasonably related” to the allegations.

Government Code section 12960(b) requires that a claimant must “set forth the particulars” of the unlawful conduct that is the basis of the employee’s grievance. (Gov. Code § 12960(b); 2 Cal.C. Regs § 10007, Martin v. Lockheed Missles & Space Co. (1994) 29 Cal.4th 1718, 1724.) Any civil action for violation of FEHA is limited to matters like or related to the DFEH complaint: “Essentially, if an investigation of what was charged would necessarily uncover other incidents that were not charged, the latter incidents could be included in a subsequent civil action. (Okoli v Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1615.) What is submitted to the DFEH is to be liberally construed in favor of plaintiff and must also be construed in light of what might be uncovered by a reasonable investigation. (Nazir v Unitied Airlines, Inc

. (2009) 178 Cal.App.4th 243, 268; Wills v. Superior Court (2011) 195 Cal.App.4th 143, 154-155.)

Plaintiff alleges that on November 2, 2016, she filed a complaint of discrimination, harassment, retaliation, denial of a work environment free of discrimination and/or retaliation, denial of equal pay, and failure to prevent discrimination and retaliation with the DFEH and received an immediate right to sue notice. (SAC ¶ 17.) The Court agrees, given the liberal construction that must be applied to the DFEH complaint and in light of what might be uncovered by a reasonable investigation, that Plaintiff has sufficiently exhausted her administrative remedies with respect to her disability discrimination claim. Accordingly, the demurrer on this ground is OVERRULED.

Defendant also contends Plaintiff’s claim fails because she has failed to allege she made a request for a reasonable accommodation that was denied and that she is qualified to do the job with or without accommodations.

To state a cause of action for disability discrimination, Plaintiff must allege: (1) she suffers from a disability; (2) is otherwise qualified to do the job with or without reasonable accommodation; and (3) was subjected to an adverse employment action because of the disability. (See, e.g., Faust v. California Portland Cement CO. (2007) 150 Cal.App.4th 864, 886.)

The elements of a failure to accommodate claim are: (1) the plaintiff is disabled under 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. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256.)

The Court agrees Plaintiff fails to allege she made a request for a reasonable accommodation that was denied and that she was qualified to do the job with or without accommodations. Plaintiff alleges she has been granted medical leave as a reasonable accommodation, and further alleges Defendant informed her that it will not grant any further medical leave beyond June 30, 2018. (SAC ¶¶ 36, 95.) However, Plaintiff does not allege she has requested further leave as a reasonable accommodation, or that and such request was denied. The allegations at this point are merely premised on the hypothetical that if Plaintiff requests further leave as a reasonable accommodation, it will be denied. This is insufficient. Further, there are no allegations that Plaintiff is able to do her job with or without reasonable accommodations. Accordingly, the demurrer on this ground is SUSTAINED, but with leave to amend as this is the first challenge to the pleading.

Conclusion

Plaintiff may file and serve a Third Amended Complaint (“TAC”) no later than August 30, 2018 consistent with the foregoing ruling. Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the amended complaint.

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.