Case Name: Elisa Jordan v. Related Management Companies, Inc., et al.

Case No.: 17CV312727

Defendant Related Management Company LP’s Motion for Judgment on the Pleadings

Factual and Procedural Background

In 2013, defendant Related Management Company LP (erroneously sued as Related Management Companies, Inc.; hereafter, “RMC”) hired plaintiff Elisa Jordan (“Jordan”) as a manager at Willow Glen Senior Community Apartments. (First Amended Complaint (“FAC”), ¶1.) From the outset of her employment, plaintiff Jordan had problems with her subordinate, Robert Aranda (“Aranda”). (FAC, ¶3.) When ordered to do things, Aranda would repeatedly not listen and not complete tasks and, instead, make aggressive and threatening actions to, around, or near plaintiff Jordan because of her sex. (FAC, ¶4.) Plaintiff Jordan believed Aranda had problems dealing with a female supervisor. (FAC, ¶5.)

Plaintiff Jordan complained to district manager, Tim Wilson (“Wilson”), about the problems she experienced with Aranda but the problems continued. (FAC, ¶6.) In February 2015, Aranda became physically aggressive when plaintiff informed Aranda his request for time off had been denied. (FAC, ¶7.) Aranda threw his pen across the room, flung his chair into a desk, and cursed at plaintiff Jordan. (Id.) Plaintiff Jordan became upset and left the room. (Id.) Plaintiff Jordan experienced chest pain and called her husband for reassurance. (Id.) Plaintiff Jordan reported the incident to Wilson. (Id.)

On April 13, 2015, plaintiff Jordan passed out from a threatening interaction with Aranda. (FAC, ¶8.) Instead of calling 911, employees at the company called plaintiff Jordan’s husband to pick her up. (Id.)

On July 8, 2015, plaintiff Jordan submitted her letter of resignation to defendant RMC. (FAC, ¶9.)

On July 7, 2017, plaintiff Jordan filed a complaint. On February 8, 2018, plaintiff Jordan filed the operative FAC which asserts a cause of action for constructive wrongful termination in violation of fundamental public policy.

On April 11, 2018, defendant RMC filed its answer to plaintiff Jordan’s FAC.

On July 31, 2018, defendant RMC filed the motion now before the court, a motion for judgment on the pleadings.

I. Defendant RMC’s request for judicial notice is GRANTED.

In support of its motion for judgment on the pleadings, defendant RMC requests judicial notice of records from the Workers’ Compensation Appeals Board (“WCAB”) claim filed by plaintiff Jordan. Judicial notice has properly been taken of WCAB files pursuant to Evidence Code section 452, subdivision (c) which allows a court to take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” (See Brooks v. Workers’ Comp. Appeals Board (2008) 161 Cal.App.4th 1522, 1536; Baca v. State Bar (1990) 52 Cal.3d 294, 298, fn. 2.)

Accordingly, defendant RMC’s request for judicial notice in support of motion for judgment on the pleadings is GRANTED.

II. Defendant RMC’s motion for judgment on the pleadings is DENIED.

“The most common defense is that any emotional distress suffered by a discharged employee is subject to the exclusive remedy provision of the workers’ compensation law.” (Chin, et al., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2017) ¶5:406 citing Labor Code, §3602; Shoemaker v. Myers (1990) 52 Cal.3d 1, 25, et al.) “The exclusivity rule does not bar a suit for emotional distress damages resulting from sexual harassment, unlawful discrimination or other misconduct that ‘exceed(s) the normal risks of the employment relationship.’” (Id. at ¶5:407 citing Livitsanos v. Sup.Ct. (Continental Culture Specialists, Inc.) (1992) 2 C4th 744, 756; Nazir v. United Airlines, Inc. (2009) 178 CA4th 243, 288.)

Plaintiff Jordan pleads around workers’ compensation exclusivity by alleging a claim for constructive discharge in violation of public policy. “To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved: (1) An employer-employee relationship; (2) Termination or other adverse employment action; (3) Termination of plaintiff’s employment was a violation of public policy (or more accurately, a ‘nexus’ exists between the termination and the employee’s protected activity); (4) The termination was a legal cause of plaintiff’s damage; and (5) The nature and the extent of plaintiff’s damage.” (Chin, et al., CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2017) ¶5:50 citing Holmes v. General Dynamics (1993) 17 Cal.App.4th 1418, 1426; see also CACI, No. 2430.)

The public policy plaintiff Jordan alleges defendant RMC violated is Labor Code section 6400. “Plaintiff was subjected to working conditions that violated public policy, specifically California Labor Code Section 6400. Under this provision, Defendant had a duty to provide a safe and healthful workplace for Plaintiff. Defendant’s failure to furnish a safe and healthful workplace constituted a violation of the Labor Code.” (FAC, ¶12.) “Defendant failed in its obligation to provide a safe and healthful workplace for Plaintiff when Defendant failed to remedy the various harassing and harmful situations Plaintiff reported to Defendant. Plaintiff was subject to threatening actions and violence, Defendant ignored the conduct at first and still never solved the problem being presented by Mr. Aranda, Plaintiff then was subject to violence from Mr. Aranda, reported the problem again to Defendant and the problem still was not solved, then was finally subject to one more violent interaction with Mr. Aranda…” (FAC, ¶13.)

Defendant RMC implicitly acknowledges a claim for wrongful termination can be tethered to the public policy found in Labor Code section 6400 when it cites to Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252, 259–260 where the court wrote:

Labor Code section 6400 et seq. and Code of Civil Procedure section 527.8, when read together, establish an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace. A credible threat is one that an employee reasonably believes will be carried out, so as to cause the employee to fear for his or her safety or that of his or her family. (See Code Civ. Proc., § 527.8, subd. (b)(2) [defining “[c]redible threat of violence” as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose”]; Pen.Code, § 139, subd. (c) [defining a “credible threat” as “a threat made with the intent and the apparent ability to carry out the threat so as to cause the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family”]; Pen.Code, § 646.9, subd. (g) [defining “credible threat” as “a verbal or written threat … made with the intent … and … with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family”]; see also Pen.Code, § 76, subd. (c)(5) [defining “threat” as a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target to reasonably fear for his or her safety or the safety of his or her immediate family”].) And it is the policy of this state to protect an employee who complains “in good faith about working conditions or practices which he reasonably believes to be unsafe.” (Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 299–300, 188 Cal.Rptr. 159 (Hentzel).)

Defendant RMC contends, however, that there are no allegations by plaintiff Jordan that her workplace was unsafe or that Aranda made any credible threat of violence. The court disagrees. “A credible threat is one that an employee reasonably believes will be carried out, so as to cause the employee to fear for his or her safety or that of his or her family.” (Ibid.) Plaintiff Jordan alleges Aranda made “aggressive and threatening actions to” plaintiff. (FAC, ¶4.) The FAC alleges further that Aranda, in a subsequent incident, “became physically aggressive” and “threw his pen across the room, flung his chair into the desk, … yelled at Plaintiff and cursed at Plaintiff. Plaintiff became visibly upset and left the room.” These allegations are sufficient to allege a credible threat of violence.

Defendant RMC argues plaintiff Jordan fails to allege that she complained about or reported the threats made by Aranda. Such allegations are clearly found in the FAC at paragraph 6 [“Plaintiff complained to Tim Wilson about the problems (including aggressive and threatening actions) she was having with Mr. Aranda.”] and paragraph 7 [“She reported the incident to Tim Wilson.”].

Next, defendant RMC contends plaintiff Jordan has not sufficiently alleged constructive discharge. Discharge includes a constructive discharge where a reasonable person would feel compelled to resign because the employer intentionally caused objectively intolerable working conditions or knowingly allowed them to exist. (See Pennsylvania State Police v. Suders (2004) 542 U.S. 129; Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1250 (Turner).)

“To establish a constructive discharge claim, an employee must prove by a preponderance of the evidence ‘that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated … that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Chin, et al., supra, ¶4:409, p. 4-44 citing Turner, supra, 7 Cal.4th at p. 1251; Garamendi v. Golden Eagle Ins. Co. (2005) 128 Cal.App.4th 452, 471 – 472.) “The test is whether a reasonable person in the employee’s shoes and faced with the alleged intolerable working conditions would have felt compelled to resign.” (Id. at ¶4:410 citing Turner, supra, 7 Cal.4th at p. 1248.) “Intolerable working conditions are those which either [1] are unusually aggravated, or [2] amount to a continuous pattern of objectionable conduct.” (Id. at ¶4:420, p. 4-45 citing Turner, supra, 7 Cal.4th at pp. 1246 – 1247; Thompson v. Tracor Flight Systems, Inc. (2001) 86 Cal.App.4th 1156, 1171 – 1172.)

Defendant RMC contends the two incidents alleged in the FAC do not amount to a continuous pattern of objectionable conduct. Defendant argues plaintiff’s subjective reaction to these two alleged incidents is not objectively reasonable. However, “[w]hether conditions were so intolerable or aggravated under that standard is usually a question of fact.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1022.) The court will make this determination at the pleading stage.

“[T]he focus in a constructive discharge case is the employer’s knowledge and conduct in forcing the employee to resign in light of the intolerable working conditions.” (Turner, supra, 7 Cal.4th at p. 1251.) “For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.” (Id.) Defendant RMC cites these passages from Turner to argue next that plaintiff Jordan must allege not only that she complained/reported the incidents to her supervisor, but that she reported the impact those incidents had on her. Certainly, at paragraph 7 of the FAC, plaintiff Jordan does allege she reported the incident with Aranda in February 2015 and its impact on her. “Plaintiff became visibly upset and left the room. She had chest pain and called her husband for reassurance. She reported the incident to Tim Wilson.” Likewise, at paragraph 6, plaintiff alleges, “Plaintiff complained to Tim Wilson about the problems she was having with Mr. Aranda.” The court can reasonably infer from this allegation that plaintiff Jordan complained not just of Aranda’s “aggressive and threatening actions,” but complained about the impact of those actions which were directed at plaintiff.

Finally, defendant RMC argues plaintiff Jordan’s claim is barred because she executed a release after settling her WCAB claim. However, as plaintiff Jordan points out, the language of the release specifically excludes the claim being asserted here. In relevant part, the release stated:

Upon approval of this compromise agreement by the Workers’ Compensation Appeals Board or a workers’ compensation administrative law judge and payment in accordance with the provisions hereof, the employee releases and forever discharges the above-named employer(s) and insurance carrier(s) from all claims and causes of action, whether now known or ascertained or which may hereafter arise or develop as a result of the above-referenced injury(ies), including any and all liability of the employer(s) and the insurance carrier(s) and each of them to the dependents, heirs, executors, representatives, administrators or assigns of the employee. Execution of this form has no effect on claims that are not within the scope of the workers’ compensation law or claims that are not subject to the exclusivity provisions of the workers’ compensation law, unless otherwise expressly stated.

(Emphasis added.)

Accordingly, defendant RMC’s motion for judgment on the pleadings is DENIED.