Case Number: BC549781 Hearing Date: August 04, 2015 Dept: 46
Case Number: BC549781
JESSICA J DRUEZ VS WOODLAND HILLS PRIVATE SCHOOL ET AL
Filing Date: 06/26/2014
Case Type: Other Employment Complaint (General Jurisdiction)

08/04/2015 at 08:32 am in department 46 at 111 North Hill Street, Los Angeles, CA 90012
(1)Motion for Summary Judgment by WTK School Corporation (sued as Woodland Hills Private School)
(2) Demurrer to First Amended Complaint by Lynn Kuo

NOTICE OF POSTING OF TENTATIVE RULING AND TELEPHONIC SUBMISSION

This tentative ruling is posted at 9:39 a.m. on 08/03/2015.

If there are no parties who have appeared in the action other than Plaintiff/Petitioner, then Plaintiff/Petitioner may submit to the tentative without appearance by telephonic notification to the clerk of Dept. 46 between 8:00 a.m. and 4:30 p.m. on a date prior to the hearing or morning prior to the hearing by calling (213) 633-0646, and the court will issue the tentative ruling as the final ruling. If the other parties have appeared in the action, then the parties must first confer and all agree that the tentative ruling will be the final ruling on the matter. If the parties to the matter before the court all agree, a representative of the parties may call the clerk and submit without an appearance, and the court will issue the tentative ruling as the final ruling. If an order is required, it should be lodged directly in Dept. 46 with a copy to adverse/other parties, if any.

TENTATIVE RULING

By this ruling, the court is finding that School’s Summary Judgment Motion should be, and hereby is, GRANTED. Further, the court finds that the Demurrer by Defendant Kuo is SUSTAINED WITHOUT LEAVE TO AMEND. As such, no cause of action remains pending for trial. FSC and Trial dates are advanced and vacated. Moving party to prepare orders for judgment and dismissal.

DISCUSSION

The First Amended Complaint in this matter was filed in this matter on 01/20/2015 and alleges eight (8) causes of action (“COA”), as follows: (1) Disability Discrimination [Gov’t Code §12940]; (2) Wrongful Termination in Violation of Public Policy; (3) Failure to Accommodate Disability [Gov’t Code § 12940]; (4) Failure to Engage in the Interactive Process; (5) Wrongful Termination In Retaliation for Requesting Benefits under CFRA [Gov’t Code § 12945]; (6) IIED; (7) Breach of Implied Covenant of Good Faith and Fair Dealing and (8) Unfair Competition against Ds Woodland Hills Private School (hereinafter, “School”); On 7/17/15, Plaintiff dismissed the 7th and 8th COAs against Kuo, without prejudice. The 1st through 5th COAs were asserted against the School only.

(1) School MSA/MSJ

WTK School Corporation (sued as Woodland Hills Private School) (“School”) seeks summary judgment and, alternately, summary adjudication of issues relative to the causes of action against the School on the following issues:

• Issue #1: P’s 1st COA (i.e., for Disability Discrimination [Gov’t Code § 12940]) fails, because P cannot establish a triable issue that D’s legitimate business reasons for the alleged termination was pretext for discriminating against her on the basis of her disability;
• Issue #2: P’s 2nd COA (i.e., for Wrongful Termination in Violation of Public Policy) fails, because P cannot establish a triable issue that a nexus exists between a public policy violation and her alleged termination;
• Issue #3: P’s 3rd COA (i.e., for Failure to Accommodate Disability [Gov’t Code §12940]) fails, because P cannot establish a triable issue that D failed to accommodate her disability;
• Issue #4: P’s 4th COA (i.e., for Failure to Engage in the Interactive Process) fails, because P cannot establish a triable issue that D failed to engage in the interactive process;
• Issue #5: P’s 5th COA (i.e., for Wrongful Termination In Retaliation for Requesting Benefits under CFRA [Gov’t Code § 12945]) fails, because P cannot establish a triable issue that D’s legitimate business reasons for the alleged termination was pretext for retaliating against her on the basis of exercising any rights under the CFRA;
• Issue #6: P’s 6th COA (i.e., for IIED) fails, because P cannot establish a triable issue that she was subjected to extreme and outrageous conduct;
• Issue #7: P’s 7th COA (i.e., for Breach of Implied Covenant of Good Faith and Fair Dealing) fails, because P cannot establish a triable issue that her employment with D was covered by an employment agreement; and
• Issue #8: P’s 8th COA (i.e., for Unfair Competition) fails, because P cannot establish a triable issue as to one or more of the elements of this COA because the underlying statutory violations on which this claim is based fail as a matter of law.

For the reasons and based upon the analysis stated below, the court finds that School is entitled to summary adjudication as to each of these issues and, because these issues cover all causes of action, summary judgment in this matter.

1st COA: Disability Discrimination [Gov’t Code § 12940]

“In employment discrimination cases under FEHA, plaintiffs can prove their cases in either of two ways: by direct or circumstantial evidence. (Guz [v. Bechtel National, Inc. (2000)] 24 C.4th [317,] at p. 354).” DeJung v. Superior Court (2008) 169 C.A.4th 533, 549. “When a plaintiff proffers circumstantial evidence, California courts apply the three-stage burden-shifting test established by the United States Supreme Court for trying claims of employment discrimination…based on a theory of disparate treatment. (Ibid., citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792).” Id.

“Under the three-part test developed in McDonnell Douglas Corp. v. Green…: ‘(1) The complainant must establish a prima facie case of discrimination; (2) the employer must offer a legitimate reason for his actions; (3) the complainant must prove that this reason was a pretext to mask an illegal motive.’ (Clark v. Claremont University Center [(1992)] 6 C.A.4th [639,] at p. 662).” Morgan v. Regents of University of Cal. (2000) 88 C.A.4th 52, 68. To establish a prima facie case of disability discrimination under FEHA, a P must show that: (1) she was a member of a protected class (i.e., she had a qualifying disability or medical condition); (2) that she was performing competently in the position she held; (3) that she suffered an adverse employment action; and (4) that some other circumstance suggests discriminatory motive. See Guz, supra, 24 C.4th at 356.

“If the employee establishes a prima facie case, the employer is required to offer a legitimate, nondiscriminatory reason for the adverse employment action. (Horn[ v. Cushman & Wakefield Western, Inc. (1999)] 72 C.A.4th 798, 806). The employer’s burden at this stage is to go forward with additional evidence; it does not take on a burden of persuasion. (Reeves v. Sanderson Plumbing Products, Inc. (2000) 530 U.S. 133, 142; Clark v. Claremont University Center, supra, 6 C.A.4th at p. 663). If the employer produces substantial evidence of a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination created by the prima facie case ‘”simply drops”’ (Horn, supra, 72 C.A.4th at p. 807, quoting St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502, 511) and the burden shifts back to the employee to prove intentional discrimination. (Horn, supra, 72 C.A.4th at p. 806; Hersant v. Department of Social Services[ (1997)] 57 C.A.4th [997,] at p. 1003; Clark, supra, 6 C.A.4th at p. 664). ‘[T]he plaintiff may establish pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”’ (Godwin v. Hunt Wesson, Inc. [(9th Cir. 1998)] 150 F.3d [1217,] at p. 1220, quoting Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 256).” Morgan, supra, 88 C.A.4th at 68-69.

The court has reviewed the opposition and considered the evidence in an effort to find triable issues. In this regard the court finds that School has shown a legitimate, nondiscriminatory reason for the adverse employment action; that is, Plaintiff was in fact offered an associate teacher position for the 2013-2014, but it was withdrawn after she failed to execute the contract sent to her. Plaintiff testified that her physician gave her a note dated 10/30/12, wherein he placed her on bedrest. (School’s Compendium of Exhibits, Exhibit “2,” 60:18-20; 61:21-62:3; 62:9-11; see al). Plaintiff also discussed this with the school’s then-principal, Ann Herman (hereinafter, “Herman”), as well as her contemplated return date. Plaintiff testified as follows:

“Q. So you had a conversation—well, you had a conversation with Ann Herman before October 30, 2012, discussing when you would be able to return to work following your—following the birth of your—

A. Right. Well—

Q. Birth of Harlow?

A. Yes. Just like the first time around, she asked me what the expected due date was, and we just rough [sic] calculation when would be the return.

Q. What was going to be the return date?

A. I believe it was going to be September 17.” (School’s Compendium of Evidence, Exhibit “2,” 66:15-25).

Plaintiff was thereafter on leave for the remainder of the 2012-2013 school year, between October 2012 and June 2013. (UMF No. 18). Plaintiff testified that she never felt that she could not take off as much time as she needed and conceded that School accommodated her doctor’s note throughout the entire period of Harlow’s birth. (School’s Compendium of Exhibits, Exhibit “2,” 74:22-24 and 77:2-7).

In 2012, Herman advised that she would be retiring, with the 2012-2013 school year being her last. (UMF No. 12). A new principal, Sossi Shanlian (hereinafter, “Shanlian”), was hired during the 2012-2013 school year to replace Herman. (UMF No. 13). One of the changes that Ms. Shanlian instituted for the 2012-2013 school year was that all teachers, including Associate Teachers, should sign annual contracts. (UMF No. 15). Founding Director Kuo attests that:

“5. Each of the elementary school classes is staffed by two teachers: a Lead Teacher and either a Co-Teacher or an Associate Teacher. Associate Teachers and Co-Teachers works in a supporting role to the Lead Teacher, but also have lead responsibilities such as creating lesson plans and leading certain learning groups. The Lead Teachers and Co-Teachers all have teaching credentials and are salaried position. The Associate Teachers do not have teaching credentials, though they are expected to be on the path to obtaining their credentials, and are paid hourly. As a result, traditionally the Lead Teachers and Co-Teachers all signed written contracts for each school year, whereas up until 2013 Associate Teachers did not.” (Kuo Declaration, ¶ 5).

Shanlian explains that:

“3. Before Ms. Herman officially retired, I spent several months during the 2012-2013 school year reviewing the school’s policies and procedures with Ms. Herman and the school’s Founding Director, Lynn Kuo, after which I implemented certain changes that I believed would better enhance the school’s educational potential. One of the changes I instituted for the 2013-2014 school year was that all teachers, including Associate Teachers, should sign annual contracts. In the past, only Lead Teachers and Co-Teachers were required to sign contracts, as they were both salaried and had their teaching credentials, but not Associate Teachers. However, since Lead Teachers and Associate Teachers had equal teaching duties within the classroom, I found it pertinent to apply this policy to all teachers…
4. Annual teacher contracts are typical for schools because they ensure that the children will have the same teacher throughout the entirety of the school year. This is important not only from a staffing perspective but also educationally and developmentally because it fosters a better learning environment when the children develop a bond with their teachers…” (Shanlian Declaration, ¶¶ 3 & 4).

All staff (including Lead Teachers, Co-Teachers, and Associate Teachers) are given annual performance reviews at the end of each school year in May, where the terms and conditions of their employment for the next year are discussed. (UMF No. 7). If any teachers are not being brought back for the next school year, they are notified during their annual performance reviews in May. (UMF No. 8). Kuo advises that “all teachers, including Lead, Co-Teachers, and Associate teachers, were asked to sign written contracts for the 2013-2014 school year, and did so in May 2013. Because Plaintiff was on a leave of absence at that time for her pregnancy, she did not receive a performance review in May 2013 and was not asked to sign a contract at that time. Ms. Shanlian and I decided to wait until after Plaintiff gave birth, which I knew would be in June, to communicate the contract to her.” (Kuo Declaration, ¶7).

The evidence further reveals that P’s daughter (Harlow) was born on 6/12/13. (School’s Compendium of Exhibits, Exhibit “2,” 29:3-8). On 6/17/13, Kuo wrote a letter to P, congratulating her on the birth of her daughter and attaching a copy of the teacher agreement (hereinafter, “K”) for the 2013-2014 school year. (Id., Exhibits “3” and “5”). Said letter asked P to sign and return the K by 6/26/13. (Id.) Kuo also e-mailed the K to P, on 6/18/13. (Id., Exhibit “4”). The K is a one-page document, with a second page entitled “Appendix A”. (Id.)

On 6/24/13, Kuo sent P a follow-up e-mail. (Id., Exhibit “6”). On 6/26/13 at 3:29 p.m., P responded to Kuo’s e-mails as follows:

“Hello Lynn, It is so nice to hear from you and I appreciate your e-mails. I have kept the school fully aware via emails and phone calls of my condition and doctors orders to stay on disability throughout my pregnancy. As you are aware, I am still on disability recovering from my c-section and bonding with my baby.

Contrary to your email, it has never been customary or usual for me to sign a contract at WHPS. While on disability, I feel you are putting undue stress on me by threatening my position and attempting to require me to sign this contract two weeks after having my baby. It is as if this contract is connected to me being put on disability for this pregnancy.

Through my research, I discovered that Woodland Hills Private School never provided me information on the California Family Rights Act and it is not mentioned in our handbook. Can you please provide me with this information?

Considering I just had my baby two weeks ago via c-section and am still on disability/baby bonding time, I would be happy to discuss this contract when my leave is over. Please accept this formal notification that I am in no way forfeiting or declining my position.

Respectfully, Jessica Druez” (Id., Exhibit “7;” emphasis in original).

That same day (6/24/13), at 5:39 p.m., Kuo replied:

“Dear Jessica,

Thank you for your response and knowing you are doing well. June has been always busy for teachers and administrators, especially Ann [sic] has retired and Sossi has taken over the principal position. To reassure our parents that all the staff will be in places, we have signed contracts with all the teachers including associates for this coming year. All the contracts had been signed in May and we waited for you until you gave the birth.

The contract involves both parties, certainly can be discussed. However, l have two things need you to clarify:

1. Do you mean that you will not discuss the contract until you return from your maternity leave which means 3 months later and 1 month after school starts?
2. The returning date, Sept. 17, 2013, which you mentioned to me in the email on April 17, will still stay the same or any changes?

Regarding the CA family Right Act, the notices of Family Care and Medical Leave and Pregnancy Leave have always been posted in the staff lounge with the Labor Law and Workers Compensation notices for staff at all time. I will check with our school HR agent and get back to you.

I did not and had no intention to threaten you or anyone but asking for a response to the contract and make sure children will have their teachers for sure for the new school year.
Regards, Lynn WHPS” (Id., Exhibit “8”).

On 7/3/13, Kuo sent P the following e-mail:

“Dear Jessica,

Your Pregnancy Disability Leave (PDL) started on 10/29/12 when you left your position for bed rest due to your pregnancy, and ran concurrently with Family and Medical Leave (FMLA). The leave ended in February 2013. Unfortunately, you are also not eligible for California Family Rights Act (CFRA) after giving birth on 6/12/13, because you have not met the 1250 -hours-worked requirement in the 12-month period before 6/12/13. (refer to the email which was sent to you yesterday, 7/2/13). In fact, we could ask you to return to work on 8/19/13 when the new school year starts, but we are willing to wait until 9/17/13 as you have requested. However, we need your commitment for the school year of 2013-2014 starting 9/17/13, your returning date, by signing the contract.

As I mentioned to you previously that WHPS contract has been always valid for a week only. All other Kindergarten and Elementary school teachers including associate teachers have signed their contracts in May for 2013-2014. We had waited for you until you gave birth and expect you to sign it to be considered employed. Considering your situation, we are willing to extend the contract valid date to July 10, 2013.

The contract helps school to make sure children will have their teachers in places for the entire school year. It also helps teachers to secure their jobs for the school year as well. We expect you to sign the contract by 7/10/13 or we will consider that a decline of the position.

Regard,
Lynn Kuo
Woodland Hills Private School” (Id., Exhibit “9”).

On 7/10/13 at 3:49 p.m., Plaintiff e-mailed Kuo as follows:

“Lynn,

You never gave me written notice that my PDL and FMLA were running concurrently, as required. Here is the link to the Department of Labor where this is stated http://www.dol.gov /whd/regs/compliance/1421.htm and more specifically, I have attached a screenshot of the specific wording on the website. I have been trying to heal from my surgery and having to deal with this from just a few days after having the c-section until now is putting a lot of stress on my recovery and bonding time with my daughter. Again, I am not forfeiting my position and will discuss your contract when my disability leave is over in September.

If you are terminating me while I am on disability, please notify me in writing.

Respectfully,
Jessi (Id., Exhibit “10”).

On 7/11/13, Kuo responded as follows:

“Dear Jessica,

Regardless, we are talking about you signing contract for next school year (9/17/13-6/6/14). Since you have declined to sign the 2013-2014 contract, the associate teacher position is no longer available to you as of July 11, 2013.

Best regards,
Lynn Kuo
Woodland Hills Private School” (Id., Exhibit “11”).

The above correspondence reflects that D School unilaterally extended P’s time to review the K, from 6/26/13 to 7/10/13. Again, the K was one-page, with a one-page Addendum. P testified that she felt physically able to return to work 3-4 weeks after giving birth; as such, she would surely have been capable of reviewing a one-page document by that time. (Id., Exhibit “2,” 75:19-25). Although she had concerns about having to sign a K and about the liquidated damages provision therein, she never attempted to call Kuo regarding same:

“Q. Okay. So you—when you wrote this e-mail on June 26, it was your frame of mind that you didn’t want to discuss the contract until you returned—returned to work in September?

A. Yeah. I had just had a major surgery. I was in no frame of mind, and then this comes and it kind of sent me for a loop because I didn’t know where this was coming from. The school has always been so, you know, nice, accommodating, so it threw me for a loop.

Q. What—what was it about the contract that you found problematic?

A. I found it a little threatening because, as I stated before, I’ve never gotten the contract, so I didn’t understand why I was being asked to sign one now. There was liquidation amount that was on there that kind of scared me. I just didn’t—I—I didn’t know what was going on or what I had done to make them think I needed to sign a contract.

Q. Did you ever just pick up the phone and call Lynn?

A. No.” (Id., Exhibit “2,” 99:5-25).

P’s communication to School that she would not even discuss the K until her leave was over (i.e., 9/17/13) was unreasonable, particularly in light of the fact that the school year would have started a month earlier. P has not provided this court with any evidence of pretext.

2nd COA: Wrongful Termination in Violation of Public Policy

The CA Supreme Court has established four requirements for wrongful termination in violation of public policy claims:

“’First, the policy must be supported by either constitutional or statutory provisions. Second, the policy must be ‘public’ in the sense that it ‘inures to the benefit of the public’ rather than serving merely the interests of the individual. Third, the policy must have been articulated at the time of the discharge. Fourth, the policy must be ‘fundamental’ and ‘substantial.’” (Stevenson v. Superior Court [(1997)] 16 C.4th 880, 889-890, fn. omitted.)’Ross v. RagingWire Telecommunications, Inc. (2008) 42 C.4th
920, 932.

“To establish a claim for wrongful discharge in violation of public policy, each of the following must be proved: • An employer-employee relationship; • Employer terminated plaintiff’s employment (or took other adverse employment action); • 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); • The termination was a legal cause of plaintiff’s damage; and • The nature and the extent of plaintiff’s damage. [See Holmes v. General Dynamics Corp. (1993) 17 CA4th 1418, 1426, fn. 8; see also CACI 2430].” Chin, Wiseman, Callahan and Lowe, CAL. PRAC. GUIDE: EMPLOYMENT LITIGATION (The Rutter Group 2014) ¶ 5:50 (emphasis theirs).

P’s COA is predicated on FEHA. The unrefuted evidence indicates that School had legitimate and non-discriminatory reasons for its actions, as set forth above.

3rd & 4th COAs: Failure to Accommodate Disability [Gov’t Code § 12940] and Failure to Engage in the Interactive Process [Respectively]

“The elements of a failure to accommodate claim are (1) the plaintiff has a disability under the 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. (Wilson v. County of Orange (2009) 169 C.A.4th 1185, 1192).” Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 C.A.4th 986, 1009-1010.

“[T]he Equal Employment Opportunity Commission (EEOC), which administers the ADA, has declared that the responsibility to initiate the interactive process of fashioning an appropriate accommodation lies primarily with the employee. ‘If an employee with a known disability is having difficulty performing his or her job, an employer may inquire whether the employee is in need of a reasonable accommodation. In general, however, it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.’ (EEOC Interpretive Guide, 29 C.F.R. § 1630.9 Appen. (1999).)… As stated in Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, ‘it is the employee’s initial request for an accommodation which triggers the employer’s obligation to participate in the interactive process of determining one. If the employee fails to request an accommodation, the employer cannot be held liable for failing to provide one.’ (Id. at p. 165, fn. omitted; see also Hunt-Golliday v. Metropolitan Water (7th Cir. 1997) 104 F.3d 1004, 1012). An employee whose disability is not apparent is therefore obliged to tender a specific request for a necessary accommodation. (Miller v. National Cas. Co. (8th Cir. 1995) 61 F.3d 627, 630). As stated in Prilliman v. United Air Lines, Inc. [(1997)] 53 C.A.4th 935, ‘”[t]he employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer’s burden to take ‘positive steps’ to accommodate the employee’s limitations… The employee, of course, retains a duty to cooperate with the employer’s efforts by explaining [his or] her disability and qualifications. [Citation.] Reasonable accommodation thus envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee’s capabilities and available positions.”’ (Id. at p. 950, quoting Goodman v. Boeing Co. (1995) 127 Wn.2d 401).” Spitzer v. The Good Guys, Inc. (2000) 80 C.A.4th 1376, 1384-1385.

‘”Reasonable accommodation” may include either of the following: (1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities. (2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” (§12926, subd. (o); see Cal.Code Regs., tit. 2, §7293.9, subd. (a); accord, 42 U.S.C. § 12111(9)).” Furtado v. State Personnel Board (2013) 212 C.A.4th 729, 745.

“’Employers must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an “undue hardship.” (Cal.Code Regs, tit. 2, § 7293.9; Sargent v. Litton Systems, Inc. (N.D.Cal 1994) 841 F.Supp. 956, 960).’” Spitzer, supra, at 1383 (citation omitted). “Under FEHA, ‘reasonable accommodation’ means ‘a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.’ (Nadaf–Rahrov v. Neiman Marcus Group, Inc. (2008) 166 C.A.4th 952, 974, italics added.).

“The interactive process imposes burdens on both the employer and employee. The employee must initiate the process unless the disability and resulting limitations are obvious. ‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, … the initial burden rests primarily upon the employee … to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’ (Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 93 F.3d 155, 165).” Scotch, supra, 173 C.A.4th at 360-361.

“An interactive process is required whereby the disabled employee requests an accommodation and the employer communicates with the employee in selecting an appropriate accommodation. [See Gov.C. § 12926.1(e)—‘The Legislature affirms the importance of the interactive process between the applicant or employee and the employer in determining a reasonable accommodation as this requirement has been articulated by the (EEOC) in its interpretive guidance of the (ADA)’ (parentheses added)…].” Chin, supra, at ¶ 9:2280. “The employer must engage in a ‘timely, good faith interactive process … in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.’ [Gov.C. § 12940(n) (emphasis added)].” Id. at ¶ 9:2281. “The employee has the responsibility to initiate the process by ‘request(ing) reasonable accommodation’ (Gov.c. § 12940(n)); and, to cooperate in good faith with the employer, including providing information that the employer may require to explore accommodations. Typically, the employee must be able to provide the employer with a list of restrictions that must be met to accommodate the employee.” Id. at ¶ 9:2282 (emphasis theirs). “[C]ase law makes clear that the employer must initiate the process if the employee’s disability is known or apparent: ‘(A)n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities … ‘ [See Prilliman v. United Air Lines, Inc. (1997) 53 C.A.4th 935, 950…].” Id. at ¶ 9:2281.1.

The above evidence reflects that P’s disability was, in fact, accommodated. P cannot establish that School failed to engage in a good faith interactive process because School accommodated P’s only known disability by providing her a leave of absence. P has not identified a single other accommodation that School should have offered or that it could have offered as P’s disability was that she was unable to work because of her pregnancy. P, in fact, received a doctor’s note saying that she could go back to work 8 weeks after her daughter was born. (D School’s Compendium of Exhibits, Exhibit “2,” 75:12-16). The evidence reflects that D School, however, was going to honor P’s return to work date of 9/17/13.

5th COA: Wrongful Termination In Retaliation for Requesting Benefits under CFRA
[Gov’t Code § 12945]

“[T]he elements of a cause of action for retaliation in violation of CFRA…are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.” Dudley v. Department of Transp. (2001) 90 C.A.4th 255, 261.

P was not provided employment for the 2013-2014 school year because she refused to sign or even discuss a K for the upcoming school year, not because she took leave under the CFRA or otherwise exercised any rights under the CFRA. The evidence reflects that D School granted all of P’s leave requests, and Kuo confirmed in their e-mail exchanges that D School was honoring her 9/17/13 return to work date, but simply wanted her to comply with the School’s policy of confirming her commitment to the 2013-2014 by signing the K—a policy to which all teachers at School were required to comply.

6th COA: IIED

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” KOVR-TV, Inc. v. Superior Court (1995) 31 C.A.4th 1023, 1028.

“Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” Janken v. GM Hughes Electronics (1996) 46 C.A.4th 55, 80.

Kuo’s request that P sign the K was “within the realm of properly delegated personnel management authority.” Id.

7th COA: Breach of Implied Covenant of Good Faith and Fair Dealing

“The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” Smith v. City and County of San Francisco 225 C.A.3d 38, 49. P testified that there was no employment agreement before Kuo sent her a written agreement to sign in June 2013. (School’s Compendium of Evidence, Exhibit “2,” 168:5-169:3). Again, P did not sign the written agreement Kuo provided to her in June 2013. (UMF No. 200). Since P cannot establish the existence of an underlying K, this COA fails.

8th COA: Unfair Competition

P has alleged that:

“69. WOODLAND HILLS, and each of them, engaged in unfair competition by discriminating against JESSICA because of her disability and for terminating JESSICA in retaliation for complaining about alterations to her time card to avoid the payment of overtime.
70. WOODLAND HILLS’ conduct, as alleged above, constitutes unlawful, unfair and fraudulent activity prohibited by Business and Professions Code §17200…” (FAC, ¶¶ 69 & 70).

As discussed previously, School did not violate any of the specific statutes that P cites; thus, there was no underlying statutory violation.

As such the motion for summary judgment is GRANTED. School to prepare order granting summary judgment and judgment.

(2) Kuo Demurrer

Demurrer by Defendant Kuo (“Kuo”) is SUSTAINED WITHOUT LEAVE TO AMEND pursuant to CCP §430.10(e) as the FAC fails to state facts sufficient to constitute COAs. and is uncertain. (P has since dismissed the 7th and 8th COAs against D Kuo)

The 6th Cause of Action for IEED is the remaining cause of action. Based upon the allegations in the FAC, the demurrer is sustained without leave to amend.

P has alleged, in relevant part, as follows:

“4. At all times relevant, Defendant LYNN KUO (hereinafter KUO) is an individual who resides in the County of Los Angeles in the State of California. At all relevant times KUO was the owner of WOODLAND HILLS and engaged in the delivery of child care and other educational services to the public. KUO while actively engaged in the operation, management, direction or control of the affairs of WOODLAND HILLS and while acting within the course and scope of their duties, did authorize the actions taken by WOODLAND HILLS and others described herein…
12. JESSICA is a female in her late 20’s. JESSICA was first employed by DEFENDANTS and each of them in the Fall of 2008 in the DEFENDANTS private educational facility. JESSICA worked for the DEFENDANTS and each of them in the position of Kindergarten Associate Teacher during her more than four (4) years of service to the Defendants and each of them…
13. In her position, JESSICA worked continuously during the years 2008, 2009, 2010, 2011, 2012 and 2013…
14. In the year prior to her termination JESSICA became pregnant. On June 12,2013 her daughter was born. JESSICA was on an approved maternity leave and had just given birth via Caesarean section. Additionally there were complications with the birth. JESSICA had just been released from the hospital to return home with her newborn.
15. On or about June 13, 2013, JESSICA informed KUO, her immediate supervisor, and an owner of the business, that she had been released from the hospital to return home and would likely be unable to return until mid-October of 2013.
16. The previous school year ran from 09-2012 thru 06-2013. KUO, her supervisor was becoming very concerned about the 2013-2014 school year in mid-June, 2013 and stated that she could require JESSICA to return to work in time for the start of school. JESSICA reminded her that she had not been released to return to work because of her pregnancy. Soon thereafter KUO contacted JESSICA and sent a proposed employment contract for the next school year starting September 2013. The new agreement was different from years past was being offered for the first time. The proposed agreement contained a ‘liquidated damages’ clause demanding a significant penalty for early termination of the agreement.
17 In her condition and under the circumstances JESSICA was unable to focus on the proposal and unable to contemplate the circumstances that’ she would be under If she had agreed to the written proposal given her health that of her newborn and other requirements created by the complicated birth. JESSICA explained to KUO that she was unable to discuss the contract because of the uncertainty and distress on the moment she was under and the demands of my new born arid requested that the ‘contract negotiations’ be tabled for even a few days to allow her to gain perspective and understanding of the new terms of her employment.
18. KUO supervisor then added the additional conditions to the proposed agreement demanding acceptance of the proposed agreement within one-week. JESSICA reiterated that these ‘negotiations’ be put aside for a short while so she could get her new born and herself settled and see her physician for a release to return to work.
19. JESSICA was then informed summarily [sic] terminated on or about July 11, 2013, and given notice the termination was effective immediately on July 11, 2013…
60. The conduct of DEFENDANTS and each of them, as set forth above was so extreme and outrageous that it exceeded the boundaries of a decent society and lies outside of the compensation bargain. Said conduct was intended to cause severe emotional distress, or was done in conscious disregard of the probability of causing severe emotional distress Said conduct is also in violation of public policy.
61. Defendant Kuo was informed by JESSICA of the birth of her child and that the birth had been a difficult birth and that she exhausted [sic] by the ordeal. Defendant Kuo upon hearing of the weakened state of her employee decided to take advantage of JESSICA’s weaken condition [sic] and sought to burden harass and harangue JESSICA to force her hand in the hope that JESSICA in her weakened condition would simply quit her position with WOODLAND HILLS. Defendant Kuo used threats of immediate termination and disciplinary action including but not limited to withdrawal of the offer to re-employ JESSICA, against JESSICA, knowing full well that WOODLAND HILLS had granted JESSICA a leave from her service with WOODLAND HILLS and that JESSICA had not as yet been released to return to work by her physician. Kuo actions [sic] represented illegal conduct prohibited by the Aforementioned Government Codes which guaranteed JESSICA the return to her position as before taking the approved leave.
62. As a proximate result of the wrongful conduct of DEFENDANTS, and each of them, JESSICA has suffered and continues to suffer severe and continuous humiliation, emotional distress, and mental pain and anguish, all to her damage in an amount according to proof at the time of trial.” (FAC, ¶¶ 4; 12-19 and 60-62).

As stated above, “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” Janken v. GM Hughes Electronics (1996) 46 C.A.4th 55, 80.

Also, “generally an employee can have no tort recovery for emotional distress resulting from his employment. The emotional distress which stems from an employer’s unfavorable supervisory decisions, including termination of employment, is a normal part of the employment relationship, even when the distress results from an employer’s conduct that is intentional, unfair or outrageous. Thus, the employee is left to his workers’ compensation remedy. (Gantt [v. Sentry Ins. (1992)], 1 C.4th [1083,] at p. 1099; Shoemaker v. Myers (1990) 52 C.3d 1, 18-20). However, a plaintiff can recover for infliction of emotional distress if he or she has a tort cause of action for wrongful termination in violation of public policy or wrongful termination in violation of an express statute because then, emotional distress damages are simply a component of compensatory damages. Phillips v. Gemini Moving Specialists (1998) 63 C.A.4th 563, 577 (emphasis theirs). “’[I]nfliction of emotional distress claims are merely alternative legal theories for holding defendants liable for the same conduct’ that underlies a related intentional tort (e.g., libel). Thus, such claims are ‘redundant’ and must stand or fall with the related claim. [Wong v. Jing (2010) 189 C.A.4th 1354, 1378-1379].” Chin, supra, at ¶ 5:421.

P has not set forth any authority that has permitted a standalone IIED COA in the employment setting against a supervisor without a corresponding harassment or similar COA alleged. This COA, then, is preempted.

Furthermore, as D Kuo points out, even if P were given leave to amend to add Kuo to her CRFA Retaliation COA, that amendment would be futile, inasmuch as supervisors are not personally liable for retaliation under the CFRA. See Nazir v. United Airlines, Inc. (2009) 178 C.A.4th 243, 287.

As such the demurrer is sustained without leave to amend.

IT IS SO ORDERED:

Frederick C. Shaller, Judge