Case Number: VC060246    Hearing Date: September 16, 2014    Dept: SEC

WANDA E CLARK V. COUNTY OF LOS ANGELES DEPARTMENT OF HEALTH SERVICES
CASE NO.: VC060246
HEARING: 9/16/14

#2
TENTATIVE ORDER

Defendant CITY OF LOS ANGELES DEPARTMENT OF HEALTH SERVICES’ demurrer to the Third Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND. C.C.P. § 430.10(e), (f).

Plaintiff Wanda E. Clark (“Clark”) is a former employee of Los Angeles County. TAC ¶ 5. She worked for the County from April 1977 to October 2001, then left and returned in March 2006 to the Probation Department. TAC ¶¶ 5, 6. She transferred to the Department of Health Services (“DHS”) in October 2007. TAC ¶ 8. The new position with DHS required her to enroll in a new benefits plan called “Pensionable MegaFlex Benefit Plan” (“MegaFlex Plan”) which meant that Clark was no longer eligible to accrue vacation or sick leave or use the leave that she had accrued prior to this time. TAC ¶ 9. Clark alleges that under the MegaFlex plan, participants were entitled to receive replacement income equal to 70% of monthly salary, but could also elect to pay, as deduction from their salaries, for additional replacement income in the event of onset of disability. TAC ¶ 10. Clark states she purchased enhanced coverage under the Short-Term Disability (STD) provisions of the MegaFlex plan, which provided that, should she become disabled so that she could not perform her essential job functions, she was to receive 100% of her salary for 21 days and 80% of her salary after that for up to 26 weeks. TAC ¶ 10. Clark’s allegations center on this change in benefits.

Clark alleges she suffered a mental disability which rendered her temporarily totally disabled from working on October 7, 2009. TAC ¶ 11. Clark alleges she accordingly presented medical evidence to DHS and requested emergency disability leave. TAC ¶ 11. Clark was granted sick leave from DHS for October 7-October 15. TAC ¶ 11. Through the Megaflex plan, Clark was granted paid short term disability leave from October 15-November 4 and 80%-paid short term disability leave for November 5-November 18. TAC ¶ 11.

Clark submitted three “work status reports” from her attending physician in order to show her disability, dated October 7, October 9, and November 6. TAC ¶ 13. The first two work status reports stated that she was fully disabled from performing work between October 7 through November 19 and the third stated that she was fully disabled from work between November 19, 2009 and January 3, 2013. TAC ¶ 13. A benefit specialist with the Claims Administrator company dealing with Clark’s claim contacted her on November 18 and stated that there was enough proof for her to receive disability between October 15 and November 18, but not beyond November 18, without further medical proof. TAC ¶ 14. The same doctor, Dr. Kliger, signed all three of Clark’s prior works status reports. He provided an additional certification on December 7, 2009 stating that Clark would be incapacitated due to her disability between November 19, 2009 and January 3, 2009. Clark called in sick to work on January 4, 2010 and quit on January 5, 2010. TAC ¶ 73.

In their demurrer, Defendant notes that three other doctors found Plaintiff to be stable with normal anxiety which is why her disability was denied. Demurrer, pg. 3. Defendant demurs to all causes of action.

1. Wrongful denial of benefits pursuant to CFRA

Ca. Gov. Code § 12945.2 states, in pertinent part:
(a) Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or a comparable position upon the termination of the leave…
…
(d) An employer shall not be required to pay an employee for any leave taken pursuant to subdivision (a), except as required by subdivision (e).
(e) An employee taking a leave permitted by subdivision (a) may elect, or an employer may require the employee, to substitute, for leave allowed under subdivision (a), any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer. If an employee takes a leave because of the employee’s own serious health condition, the employee may also elect, or the employer may also require the employee, to substitute accrued sick leave during the period of the leave….
…
(k)(1) An employer may require that an employee’s request for leave because of the employee’s own serious health condition be supported by a certification issued by his or her health care provider….

Clark alleges that section ‘e’ guarantees payment of benefits, but her interpretation is flawed. She makes no allegations that she was not granted the 12 weeks or allowed to come back to work. In fact, she quit of her own accord.

2. Discrimination under FEHA
California uses the McDonnall Douglas Test to analyze discrimination claims. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354. The plaintiff has the prima facie burden to provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive. Id. at 355. The burden then shifts to the employer to rebut a presumption of discrimination by showing the action was taken for a legitimate, nondiscriminatory reason. Id. at 355-356. The plaintiff may then attack the employer’s reason as pre-textual, or may offer any other evidence of discriminatory motive. Id. at 356.

Clark alleges that she resigned as a result of what amounts to coercion from DHS, due to intolerable conditions and a hostile work environment, and thus she was “constructively terminated.” TAC ¶¶ 73, 74. This was not an adverse employment action, as there is no indication that Clark was terminated by Defendant or denied a position or promotion. Further, Clark alleges DHS had a discriminatory motive because she had a mental illness, but she gives no circumstantial evidence to show that they discriminated against her; rather, she infers their discrimination from denial of her benefits, but there is no causal link.

3. Harassment under FEHA (Ca. Govt. Code. § 12940)

The elements of a cause of action for harassment are: “(1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome … harassment; (3) the harassment complained of was based on [the protected status]; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” Kelley v. Conco Companies (2001) 196 Cal.App.4th 191, 202-203.

Clark has made no allegations concerning the conditions of her work environment; rather, she solely alleges she should have been able to apply disability benefits to her leave of absence from November 2009 to January 2010. DHS took no actions toward Clark; instead, she was placed off work by her treating physicians. Clark alleges she was harassed by the claims administrator, who was an agent of DHS, when the administrator denied her benefits. This “harassment,” however, was not abusive or even unreasonable, as the claims administrator simply analyzed Clark’s claim and denied a portion of it based on doctor’s assertions that Clark was getting better.

4. Failure to Engage in the Interactive Process under FEHA

An employer must engage in a good faith interactive process with a disabled employee to explore alternatives to accommodate the disability. Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424-425.

Clark alleges she was temporarily disabled so as to be unable to work, and no amount of negotiation or accommodation on behalf of DHS could have remedied that. Clark alleges that DHS did not engage her in the interactive process when she sought a financial accommodation “in order that she might best and most quickly recover in an atmosphere free of unwarranted financial stress.” TAC ¶ 90. Payment for her entire leave period was not an accommodation. Further, her initial request was approved.

5. Failure to Accommodate under FEHA

The 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.” Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192. Under FEHA, a reasonable accommodation is a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job. Wills v. Superior Court (2011) 195 Cal.App.4th 143, 166.

Clark’s complaint specifically alleges that she was not qualified to perform the essential functions of the position. She states that her doctor diagnosed a temporary disability that rendered her unable to work for a period between October 2009 and January 2010. TAC ¶ 12. Clark does not allege she requested an accommodation or what accommodation she allegedly needed for her mental disability within the meaning of the FEHA. Clark’s requests to the claim administrator for financial recompense for the entire duration of her leave of absence does not constitute an accommodation under the FEHA, as it is not a modification or adjustment to the workplace.

Although Plaintiff has added causes of action to this third amended complaint, they arise out of the same set of facts. Clark has had three opportunities to amend her complaint and it seems as if the defects cannot be cured. Thus, the demurrer is sustained without leave to amend