2012-00137019-CU-OE

Onalis Giunta vs. State of Ca, Dept of Corrections and Rehab

Nature of Proceeding:    Hearing on Demurrer

Filed By:   Sommerdorf, Scott A.

Defendant CDCR’s Demurrer to the 2nd amended complaint is ruled on as follows:

Plaintiff’s Request for Judicial Notice is granted.

Plaintiff alleges violations of the Fair Employment and Housing Act arising out of a
death threat from a co-worker and her subsequent alleged undefined mental disability
and request for accommodation.  Plaintiff was a Supervising Dental Assistant at
CDCR, Represa. Her subordinate, Surge Protsyuk, was upset with her for changing
his shift.  Protsyuk was written up for being insubordinate to plaintiff and on November
9, 2010 allegedly threatened to kill plaintiff.  On November 10, 2010 when Protsyuk
walked by plaintiff’s office she had a panic attack. When plaintiff complained to the
warden he told her that what happened was due to plaintiff’s lack of supervisory skills.
On November 18, 2010, plaintiff asked to be provided a safe work environment, and
filed a complaint with the EEOC on November 24, 2010.  The EEOC responded that it
did not deal with workplace violence issues. Starting February 22, 2011, Plaintiff began
seeing a therapist on a weekly basis for stress from workplace conditions.  She was
taken off work on May 5, 2011 due to stress.  (SAC ¶ 33)  She returned to work July
25, 2011 with an accommodation that she would work on a different floor than
Protsyuk even though she was required to still supervise employees on Protsyuk’s
floor. Plaintiff alleges that on February 8, 2012 she was told that she would not be
accommodated any longer and that she could either work with Protsyuk or resign.
(SAC ¶ 35) In March Plaintiff requested a transfer to Vacaville but was told Folsom’s
Return to Work process did not provide for such transfer  One month later, Plaintiff
was transferred to Vacaville but alleges that the transfer was “not done according to
rules for transfer.”  (SAC ¶ 38.)

1st cause of action Violation of Labor Code section 1102.5 and 2nd cause of
action Violation of Labor Code section 6310: Sustained with leave to amend for
failure to state facts sufficient to constitute a cause of action. Plaintiff has requested
judicial notice of a motion to amend that is on calendar for January 7, 2014.  Although
defendant has withdrawn its failure to exhaust argument (Labor Code section 98.7)
based on recent legislation, plaintiff recognizes that her references to Labor Code
sections 232.5 and 2699.3 are improper and seeks leave to amend.

3rd cause of action Violation of Whistleblower Protection Act Gov Code 9149.20-
9149.22: Sustained with leave to amend for failure to state facts sufficient to constitute
a cause of action.  Defendant contends that the code sections cited do not provide for
a cause of action.  Plaintiff concedes in her opposition that this cause of action refers
to the wrong code sections, and seeks to amend to allege the correct code sections for
whistleblower protection.

4th cause of action Disability Discrimination (Mental Disability) and
5th cause of action Failure to Prevent Discrimination:  Sustained without leave to
amend for failure to state facts sufficient to constitute a cause of action.  Plaintiff states
in her opposition that she will remove theses causes of action in her proposed 3rd
Amended Complaint.

6th cause of action Failure to Accommodate and 7th cause of action Failure to
Engage in the Interactive Process:  Sustained with leave to amend for failure to
state facts sufficient to constitute a cause of action.  Plaintiff alleges she has a mental
disability but no longer seeks damages for disability discrimination.  Plaintiff has not
defined her mental disability.  Plaintiff cannot allege a failure to accommodate if she
has not alleged a mental disability that was communicated to the employer.  Plaintiff
contends her proposed 3d amended complaint defines her specific mental disabilites.

Plaintiff may file and serve a proposed 3rd amended complaint on or before January
10, 2014.  Plaintiff is directed to contact the calendar clerk to drop the motion to amend
if this ruling resolves the issues on the motion to amend.

Response to the 3rd amended complaint to be filed and served within 20 days of
service of the amended complaint, 25 days if served by mail.

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