2013-00155212-CU-OE

Joylynn Wisdom vs. Elk Grove Adult Community Training

Nature of Proceeding: Hearing on Demurrer (Elk Grove Adult Community Training)

Filed By: Schachter, Alesa

**If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issue(s) on which oral argument is sought.**

The demurrer of Defendant Elk Grove Adult Community Training (“EGACT”) to Plaintiff
Joylynn Wisdom’s (“Wisdom”) complaint is SUSTAINED in part with leave to amend
and OVERRULED in part as follows:

This case presents an employment dispute. Wisdom alleges that her former
supervisor, Co-Defendant Carla Carli (“Carli”), sexually harassed her and that EGACT
failed to prevent the harassment. Allegedly, Carli repeatedly took issue with the
appropriateness of Wisdom’s work attire, including in front of Wisdom’s clients, and
stared at her breasts even though others in management saw no problem with
Wisdom’s attire. Although EGACT directed Carli to apologize to Wisdom once, Carli’s
harassment continued, and EGACT failed to take sufficient corrective action despite
promises otherwise. Wisdom further alleges that she was required to take a medical
leave of absence due to Carli’s treatment and that EGACT refused to allow her to
return to her former worksite, after which she was forced to resign. On grounds that
Wisdom’s allegations fail to state facts sufficient to state a cause of action, EGACT
now demurs to each of the five causes of action directed against it.

The First and Third Causes of Action for (1) Sexual Harassment/Hostile Work
Environment/Aiding and Abetting [FEHA] and (2) Failure to Prevent [FEHA]

The demurrers are OVERRULED.

EGACT argues first that the demurrers should be sustained because Wisdom has not
alleged conduct that could be construed as harassment. In EGACT’s view, Carli’s
conduct constituted “commonly necessary personnel management actions” and,
therefore, was not harassment as a matter of law. (See Moving Memo., Part III-B-1.)
Among other things, EGACT points out that DFEH regulations entitle employers to
impose reasonable restrictions on work attire.

The court rejects EGACT’s argument because, liberally construed, Wisdom’s
allegations establish a course of conduct, including Carli’s ogling, reprimanding
Wisdom in front of others and reprimanding her for “stimulating” her male co-workers,
that goes beyond normal personnel management actions. (See CCP § 452 [pleadings
must be liberally construed to determine their effect].) Indeed, Wisdom alleges that
EGACT forced Carli to apologize for her workplace conduct, which can be construed
as EGACT’s admission that Carli’s conduct was not solely within her normal
managerial role. Whether Carli’s conduct in relation to enforcement of EGACT’s dress
code was “normal” is a fact question that the court may not resolve at this juncture.

Next, EGACT argues that the demurrers should be sustained because Wisdom has
not alleged conduct sufficient to constitute “severe or pervasive” harassment. Again,
the court disagrees and concludes that the issue of severity / pervasiveness presents
a factual issue that the court may not currently decide as a matter of law.

Because Wisdom has alleged actionable harassment, the court rejects EGACT’s
argument that the derivative failure-to-prevent cause of action is defective because
there is no underlying harassment.

The Second and Fifth Causes of Action for Sex Discrimination [FEHA] and Wrongful
Termination in Violation of Public Policy

The demurrers are SUSTAINED with leave to amend.

The court agrees with EGACT that Wisdom has failed to allege sufficient facts to
establish that she was terminated. All that Wisdom alleges is that, after she returned
from medical leave, EGACT moved her to another site, not that EGACT terminated
her. In addition, because Wisdom alleges that it moved her away from the site where
Carli was supervisor, it is unclear how the move subjected her to any harassment or
other unlawful conduct that rose to the level of constructive termination. That the
move would have deprived Wisdom of contact with her long-time clients does not
amount to constructive termination. The court grants Wisdom leave to amend.
Because the court sustains the demurrer to the second cause of action for the reasons
stated above, it does not address EGACT’s further arguments in support of the
demurrer to that cause of action.

The Fourth Cause of Action for Intentional Infliction of Emotional Distress (“IIED”)

The demurrer is SUSTAINED with leave to amend.

As EGACT observes, IIED is subject to the workers-compensation exclusivity unless
the employer’s conduct falls outside the normal employer-employee relationship. That
the employer’s conduct was allegedly malicious or even outrageous does not
constitute an exception. (See Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148,
160.)

Here, however, Wisdom has alleged conduct in violation of the FEHA, and such
conduct is outside the normal employment relationship. (See Murray v. Oceanside
Unified Sch. Dist. (2000) 79 Cal.App.4th 1338, 1363.) Thus, her IIED cause of action
is not preempted by the workers compensation exclusivity.

In reaching its conclusion, the court is aware of EGACT’s argument that the California
Supreme Court held in 2008 that IIED causes of action, even if based upon violations
of the FEHA, are subject to the workers compensation exclusivity. (See Reply at 8:8-
th
22 [citing Miklosy v. Regents of Univ. of Calif. (2008) 44 Cal.4 876, 902-903 and non-
binding federal authorities.) This court does not read Miklosy as broadly as EGACT
th
does and, therefore, rejects the argument. (See Miklosy, 44 Cal.4 at 903 [citing
authority for proposition that IIED causes of action not based on violation of an express
statute such as the FEHA are subject to the workers compensation exclusivity].)

Because Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222
th
Cal.App.4 819 did not involve a FEHA cause of action, EGACT’s reliance on it is
misplaced as well.

Nonetheless, the court agrees with EGACT that the allegations cannot be construed
as so outrageous as to exceed all bounds of a civilized society. Carli’s alleged pattern
of scrutinizing Wisdom’s attire, ogling her breasts and even doing so in a way that
could have demeaned her in front of her clients does not meet this high threshold. The
court grants Wisdom leave to amend her IIED cause of action.

Conclusion

No later than June 2, 2014, Wisdom may file and serve a first amended complaint
(“FAC”) to remedy the defects in her second, fourth and fifth causes of action; EGACT
to file and serve its responsive pleading(s) within 10 days thereafter, 15 days if the
FAC is served by mail. (Although not required by any statute or rule of court, Wisdom
is requested to attach a copy of the instant minute order to the FAC to facilitate the
filing of the pleading.)

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