First Amended Complaint (“1AC”) is SUSTAINED without leave to amend, as follows.

Defendants’ request for judicial notice is granted.

This action arises out of plaintiff’s employment at the Sacramento Mental Health
Treatment Center, which is operated by County.  Defendant Panyala is identified as
plaintiff’s supervisor.  The 1AC now alleges twelve causes of action (“COA”), many of
which defendants now challenge on various grounds.  Plaintiff opposes.

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1   COA for Disability Discrimination.   Defendants contend this COA fails because
the 1AC fails to plead facts constituting any actionable adverse employment action
against plaintiff and/or facts establishing a discriminatory motive.

The opposition argues that the 1AC now alleges the following adverse actions against
plaintiff:  (1) Denial of her request to wear hand splints, (2) denial of “safety equipment”
provided to other employees, (3) denial of “an ergonomic assessment,” (4) refusal to
interact with plaintiff, (5) subjecting plaintiff to unjust criticism, (6) disregard of plaintiff’s
safety and (7) denial of a revised work schedule which was permitted for other
employees.  Plaintiff also insists a discriminatory motive is properly pled inasmuch as
the 1AC shows she was treated differently from other similarly situated employees
based at least in part on her physical disability.

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The Court must sustain the demurrer to the 1   COA.  Despite the opposition’s
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characterization of this discrimination claim, the 1   COA actually alleges in purely
conclusory terms that “Defendants’ belief that Plaintiff had a physical disability was a
motivating reason in taking [unspecified] adverse employment actions against
[plaintiff]” (1AC, ¶44) and alleges that “Defendants further discriminated against
Plaintiff with regard to the terms and conditions of her employment because of her
physical disability” since “Plaintiff (1) missed a week’s pay when she attempted to
return to work from a medical leave and Dr. Panyala told her that she could not return
to work without [sic], (2) was regularly denied the opportunity to work overtime or
double shifts, and (3) was denied her requested vacation time” (1AC, ¶48).  Based on
these express allegations, defendants are correct that plaintiff failed plead facts
showing any adverse employment action which ‘materially affected the terms,
conditions or privileges’ of plaintiff’s employment (McRae v. Department of Corrections
& Rehabilitation (2006) 142 Cal. App. 4th 377, 386) and/or showing such action was
motivated at least in part by plaintiff’s alleged disability.

Moreover, even if the seven (7) actions identified in the opposition were actually
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alleged in the 1   COA, the demurrer would still be sustained because none of these
actions is sufficient to constitute actionable adverse employment action under the
statute.  For example, defendants’ alleged “denial of [unspecified] ‘safety equipment’,”
“refusal to interact with plaintiff,” “subjecting [her] to unjust criticism,” and/or “disregard
of plaintiff’s safety,” without more, does not ‘materially affect the terms, conditions, or
privileges of employment.’  Similarly, the claim that defendants denied plaintiff’s
request to wear hand splints, to have “an ergonomic assessment” and to have a
revised work schedule may amount to a failure to accommodate plaintiff’s disability but
does not constitute actionable disability discrimination

Finally, the Court reminds plaintiff’s counsel that all statutory claims such as this one
under Government Code §12940 must be pleaded with factual particularity, meaning
that every fact essential to the existence of statutory liability must be pled. (See, e.g.,
Lopez v. Southern Calif. Rapid Transit District (1985) 40 Cal.3d 780, 795.)

3rd COA for Age Discrimination.   Defendants demur to this COA arguing that it does
not state facts which establish plaintiff suffered any actionable adverse employment
action and/or state facts showing a discriminatory motive.

In opposition, plaintiff maintains that the 1AC sufficiently alleges she is over the age of
40 and defendants knew of her age but nevertheless “discriminated against her by
harassing and retaliating against her because of her age, denying her
accommodations for disability, failing to prevent discrimination and retaliation against
her due to her age, and otherwise discriminating against her in the terms of her
employment.” (Oppos., p.4:26-p.5:1.)  Plaintiff further argues that the 1AC adequately
pleads a causal connection between the adverse action and her age, which should
suffice to overcome this demurrer.

The demurrer to the 3rd COA is sustained as well.  First, plaintiff appears to conflate
actionable discrimination under the Fair Employment and Housing Act (“FEHA”) with
other conduct prohibited by FEHA, such as harassment, retaliation, failure to
accommodate and failure to prevent discrimination.  Second, while the opposition
specifically asserts plaintiff suffered discrimination “in the terms of her employment”
based on her age, the opposition fails to identify any specific conduct which ‘materially
affected the terms, conditions or privileges’ of plaintiff’s employment and to the extent
plaintiff may be tacitly referring to the same seven (7) actions which were identified in
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opposition to the demurrer to the 1   COA, plaintiff’s reliance is misplaced because
these actions do not rise to the level of actionable adverse employment actions which
could support a discrimination claim.  Third, although Paragraph 61 alleges that
plaintiff was “treated differently…regarding her ability to change her schedule, the
availability of overtime, her ability to schedule vacation, and her ability to return to work
from leave,” none of this conduct attributed to defendants significantly or substantially
impairs the “terms, conditions or privileges” of plaintiff’s employment.  But even if it did,
the 3rd COA fails to adequately plead that defendants’ conduct was motivated by
plaintiff’s age since Paragraph 61 effectively admits “other similarly situated
employees” (i.e., over 40 years of age) were permitted to change their work schedule,
obtain overtime work, schedule vacation time, etc.  This allegation alone suggests that
plaintiff’s age was not a motivating factor in defendants’ conduct.  Finally, as discussed
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above, the 3   COA is not pled with the factual particularity required for all statutory
claims.

5th COA for Racial Discrimination.   Defendants demur to this COA arguing that it
does not state facts which establish plaintiff suffered any actionable adverse
employment action and/or state facts showing a discriminatory motive based on
plaintiff’s race (Caucasian).

The opposition insists that the 1AC now specifically refers to the “disparate treatment
of employees based on their race” based on a “disparate impact” theory, meaning a
facially neutral practice or policy having a disproportionate adverse effect on members
of a particular race which effectively shows a discriminatory animus.  However, the
Court notes that the opposition does not specifically identify or refer to any such policy
or practice or anything else which tends to show that plaintiff was denied any “terms,
conditions or privileges” of her employment on account of her race.

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The Court also sustains the demurrer to the 5   COA.  Paragraph 78 states in purely  conclusory terms, “The discriminatory acts of Defendants, including but not limited to
the facts alleged above, were committed by Defendants” and as such, this paragraph
does not plead facts sufficient to establish any adverse employment action which could
support this COA.  Paragraph 79 then alleges that plaintiff had requested several
accommodations for her physical disability including wearing a wrist brace but these
requests were denied.  While this paragraph may support a failure to accommodate
claim, it has no relevance to this race discrimination COA.  Additionally, while
Paragraph 80 asserts that one of plaintiff’s coworkers “who shares Dr. Panyala’s race”
also requested and was permitted to use of hand braces, this does not establish any
discriminatory intent on the part of defendants because the 1AC nowhere identifies Dr.
Panyala’s race” and thus, no racial animus can be inferred from this allegation.  As
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with the preceding COA discussed above, the 5   COA lacks the factual particularity
needed for a statutory claim.

8th COA for Harassment.  Defendants contend this COA fails because the conduct
complained of was neither severe nor pervasive so as to create a hostile working
environment that no reasonable person would be expected to tolerate and/or this COA
fails to plead facts showing such conduct was motivated by some protected
characteristic.

The opposition argues that the 1AC now states that plaintiff’s requests to attend
Sunday services and to wear assistive devices were repeatedly denied and that when
the 1AC is be read as a whole, it shows a sufficient “pattern of harassment” occurring
over an extended period of time and interfering with “plaintiff’s work environment in a
manner that a reasonable person would have found was unreasonable.”  Plaintiff also
contends that defendants’ denial of her vacation request as alleged in Paragraph 25
was “part of a pattern of harassment” and that the stated reason for its denial (i.e., the
request was made late) was false.

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The demurrer to the 8   COA must also be sustained.  Regardless of what is asserted
in the opposition, the substantive charging allegations of this harassment COA
consists of the following:

101.    Plaintiff was given job duties different from those of her coworkers and
when she asked why, she was told not to ask questions.  Other employees told
plaintiff they felt she was being harassed in order to force her to quit.
102.    Plaintiff was repeatedly denied reasonable work accommodations,
transfers, overtime, vacation time, and timely return to work.
103.    Plaintiff’s supervisor “engaged directly in this harassing and hostile
conduct.”
104.    “Defendants’ actions created a hostile work environment that was
sufficiently severe and pervasive so that it altered the conditions of Plaintiff s
employment.”
105.    “…Defendants created and allowed a hostile work environment to exist
and discriminated against and harassed plaintiff on the basis of plaintiff’s
disability, religion, race, and age.”

None of these allegations, even when the 1AC is read as a whole, is sufficient to
establish any actionable harassment by defendants.  Plaintiff has failed to plead facts
which establish any severe or pervasive conduct which could create a hostile work
environment no reasonable person would tolerate.  Moreover, the 1AC fails to plead
facts which tend to show that any of this alleged conduct by defendants was motivated  by plaintiff’s disability, religion, race and/or age.  Finally, the opposition’s contention
that defendants wrongly denied plaintiff’s vacation request as being late is legally
irrelevant to this COA for harassment.

9th COA for Retaliation.  Defendants demur to this COA arguing that it does not state
facts which establish plaintiff suffered any adverse employment action and/or state
facts showing a causal connection between any protected activity and any adverse
employment action.

In opposition, plaintiff maintains that she suffered a number of discriminatory and
harassing adverse employment actions due to her disability, race, religion and age as
discussed above.  Plaintiff also argues that contrary to the demurrer, the 1AC “clearly
states that (1) Plaintiff requested accommodation for her hands, (2) the request was
denied, (3) she was finally granted leave to wear an assistive device, and (4) this right
was then taken away in retaliation for her complaints.” (Oppos., p.6:25-28.)

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The Court sustains the demurrer to the 9   COA.  Initially, each of plaintiff’s arguments
claimed to establish that she suffered actionable adverse employment action in
connection with the preceding COA has already been rejected for the reasons stated
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above and thus, her reliance on those arguments to support her 9   COA is misplaced.
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More importantly, the actual allegations in the 9   COA are insufficient to show any
adverse employment action required to support this retaliation claim.  Instead, this
COA alleges in pertinent part that plaintiff “was…forced to endure multiple adverse
employment actions including, but not limited to, the denial of reasonable
accommodations for disability, denial of overtime, denial of transfer, and denial of
changes to her schedule” (1AC, ¶¶111-112); as a result of reporting a hostile work
environment, plaintiff was subsequently denied accommodation for her disability and
changes to her schedule to attend religious services (1AC, ¶¶113-114); defendants’
conduct, taken as a whole, created a hostile work environment which materially and
adversely affected the terms of plaintiff’s employment (1AC, ¶115); when plaintiff again
reported the hostile work environment and requested an affirmative plan to end this
discriminatory treatment, defendants denied “any hostile work environment,
harassment, retaliation, or any other negative acts against Plaintiff” and “Rather than
cease their retaliation and engage in a good faith interactive process or grant Plaintiff’s
request for reasonable accommodation, Defendants retaliated against Plaintiff
because she had attempted to protect her rights against discrimination and
harassment” (1AC, ¶¶116-117); defendants “initially granted accommodations for
Plaintiff’s disability, but they then withdrew those accommodations…” (1AC, ¶118); and
finally, “Plaintiff’s protected activities were motivating factors for Defendants’ decision
to deny her a good faith interactive process and reasonable accommodation” (1AC,
¶119).

However, none of defendants’ alleged actions, including the refusal to engage in the
interactive process and/or to accommodate plaintiff’s disability, constitutes actionable
adverse employment action on which a retaliation COA may be based and thus, this
COA is patently deficient.  Third, plaintiff has failed to plead facts which affirmatively
establish any causal connection with some protected activity by plaintiff.  In reality, as
currently alleged, plaintiff appears to admits defendants did accommodate plaintiff’s
claimed disability (1AC, ¶118) and while the 1AC further alleges the accommodations
were subsequently withdrawn, there are no facts pled which so much as suggest this
withdrawal was motivated even in part by plaintiff engaging in some protected activity.
Finally, as discussed above, statutory claims such as retaliation must be pled with
factual specificity but plaintiff has here failed to do so.

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10   COA for Intentional Infliction of Emotional Distress.   Defendants maintain that
this COA is deficient because it fails to plead facts showing that defendant Panyala
engaged in extreme and outrageous behavior and/or that County, as a public entity,
cannot be directly liable for IIED.

Although confusing (in that it does not respond directly to defendants’ distinct legal
contentions), the opposition argues that this COA “is based on actions outside the
normal course of the employer-employee relationship and the repeated denial of her
rights under FEHA was severe enough conduct to warrant special damages” and
further that the 1AC includes multiple factual allegations which show the employer’s
discriminatory motive in treating plaintiff adversely. (Oppos., p.7:11-15.)  Plaintiff also
claims that public entities may have vicarious liability under respondeat superior for its
employees’ actions pursuant to Government Code §815.2.  The opposition further
asserts that defendant County had a mandatory duty under FEHA to “operate a
workplace free of discrimination, harassment, and retaliation” and thus, County may
have liability consistent with Government Code §815.6.

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The demurrer to the 10   COA must also be sustained.  None of the conduct attributed
to defendant Panyala in the 1AC can be fairly characterized as “extreme and
outrageous” as required to state a valid IIED claim and the mere fact she may have
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violated some FEHA provision does not, without more, sustain the 10   COA.  Since
plaintiff has failed to state a valid IIED claim against defendant Panyala, her employer
(County) can have no vicarious liability either.  Additionally, defendants are correct that
public entities such as the County can have no direct liability for IIED since it is a
common law theory of liability, rather than statutory.

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11   COA for Negligent Infliction of Emotional Distress.   Defendants demur to this
COA arguing that it fails against defendant Panyala because the allegations fail to
establish “direct victim” NIED and/or that County, as a public entity, cannot be directly
liable for NIED.

The opposition does not appear to address defendants’ first contention regarding
“direct victim” NIED but rather only seems argue that under Government Code §815.2,
a public entity may be vicariously liability for actions by public employees in the course
and scope of their employment. (Oppos., p.7:6-p.8:22.)

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The Court sustains the demurrer to the 11   COA for NIED.  The opposition not only
failed to identify any facts which support the finding of a duty of care owed by
defendant Panyala herself to plaintiff relative to the latter’s emotional well-being but
also failed to demonstrate a valid “direct victim” NIED claim against defendant
Panyala, which is construed as a concession of the merits of the demurrer to the 11th
COA.  Consequently, defendant County can have no vicarious liability for any NIED
even under Government Code §815.2 and can have no direct liability for NIED under
§815.

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12   COA for Negligent Supervision and Retention.   Defendants demur to this COA
because a public entity cannot be liable for a common law tort and because there are
no facts to support County’s vicarious liability for the negligence of some public
employee in connection with the supervision or retention of defendant Panyala.              In opposition, plaintiff argues that Government Code §815.2 creates vicarious liability
for public entities based on injuries caused by the acts or omissions of their employees
and that “Defendants violated FEHA in their treatment of plaintiff.” (Oppos., p.8:25-
p.9:6.)

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The demurrer to the 12   COA is sustained as well.  The 1AC still fails to allege facts,
as opposed to mere conclusions, which establish that a particular County employee
was negligent in connection with his/her supervision of defendant Panyala and which
proximately caused some injury or damage to plaintiff.  In fact, Paragraph 136 alleges
that “Defendants breached their duty to exercise reasonable care and acted
negligently in the training and retention of these employees by failing to ensure that
they would comply with regulations in place by Defendants County and Treatment
Center for harassment and discrimination” (emphasis added) but the only defendants
actually named in the 1AC are County, the County’s Mental Health Treatment Center
and Dr. Panyala.  Similarly, Paragraphs 138 and 139 allege that “Defendants failed to
take reasonable steps to protect plaintiff from the discriminatory actions by Dr.
Panyala” and that “As a further direct and proximate result of the negligence of
Defendants as set forth above, plaintiff suffered mental anguish and pain and
continues to suffer from humiliation,…” (Emphasis added.)  Since a public entity
cannot have direct liability for the negligent supervision or retention of defendant
Panyala herself and since the 1AC otherwise fails to identify any other County
employee whose alleged negligence not only caused or contributed to plaintiff’s
claimed injuries and damages but also which may give rise to vicarious liability on the
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part of the County, the 12   COA fails as a matter of law.

Since plaintiff has now had two opportunities to plead the above COA, since plaintiff
has failed to demonstrate how the deficiencies noted above may be cured and since
this Court concludes plaintiff does not have a reasonable probability of curing the
defects noted above, leave to amend is denied.

If not already done, County to file and serve an answer to the 1AC within 15 days

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)