LESLIE WALKUP v. NET OPTICS, INC., ET AL.

Case No.:  1-13-CV-256776

DATE:  April 24, 2014

TIME:  9:00 a.m.

DEPT.: 3

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  We also consider matters which may be judicially noticed.’”  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

Defendant’s demurrer to the  FAC’s 1^st cause of action, Disability Discrimination in violation of Gov. Code §12940(a), on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.  Plaintiff cannot sufficiently state a claim while refusing, for no apparent reason, to identify the claimed disability.  The general rule is that statutory claims must be pled with particularity.  Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4^th 771, 790.  The present allegations in the FAC at 7 that “plaintiff suffered from an impairment that constituted a physical disability according to the statutory definition,” and at 8 that “there was at all relevant times an actual or perceived physiological disorder which affects a major body system and limits the individual’s ability to participate in one or more major life activities,” are, in the absence of an identified disability, simply legal conclusions.  Not all disabilities are covered by FEHA and statutory interpretation is a question of law for the Court even on demurrer.  An allegation asserting that an unidentified condition is covered by a statute is a legal conclusion that the Court does not accept as true on demurrer.

Under FEHA, a person is “physically disabled” when he or she has a physiological condition that limits a major life activity. Gov. Code, §12926(k)(1)(B). A qualifying disease or condition limits a major life activity if it makes the achievement of the activity difficult. “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity. Gov. Code, §12926(k)(1)(B).  Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App. 4^th 297, 311.  Plaintiff cannot properly state a claim for discrimination on the basis of an alleged “disability,” without identifying the impairment and/or disability he suffered from and the major life activity or activities limited by it.

Defendant’s demurrer to the FAC’s 2^nd cause of action, Failure to Prevent Discrimination and Harassment in violation of Gov. Code §12940(k), on the ground that it fails to state sufficient facts is also SUSTAINED with 10 days’ leave to amend.  Without a properly pled claim for discrimination on the basis of an identified disability that is covered by the statute there can be no claim for failure to prevent such discrimination.

Defendant’s Demurrer to the FAC’s 3^rd cause of action, failure to make reasonable accommodation in violation of Gov. Code §12940(m), and to the 4^th cause of action, failure to engage in interactive process in violation of Gov. Code §12940(n), on the ground that they both fail to state sufficient facts are both SUSTAINED with 10 days’ leave to amend as well.  The FAC’s allegations at 26 (3^rd cause of action) and 30 (4^th cause of action) that Defendant at all times had knowledge of the unidentified disability are insufficient to support these claims.

First, “[t]he FEHA imposes on the employer the obligation to make reasonable accommodation” for a known mental or physical disability of an employee.  Scotch v. Art Institute of California (2009) 173 Cal.App.4^th 986, 1003.  “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.”  Id. at 1009-1010, emphasis added.  By failing to identify any claimed disability Plaintiff has not sufficiently alleged these elements.

Next, “[t]he FEHA imposes an additional duty on the employer ‘to engage in a timely, good faith, interactive process with the employee … to determine effective reasonable accommodations … .’  An employer’s failure to engage in this process is a separate FEHA violation.”  Wilson v. County of Orange (2009) 169 Cal.App.4^th 1185, 1193, internal citation omitted.

“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.’”  Scotch, supra, at 1013.  See also Arteaga v. Brink’s, Inc. (2008) 163 Cal. App. 4^th 327, 349 (An employee who claims to have a disability cannot demand clairvoyance of his or her employer. First, the employee has a duty to inform the employer that he or she has a disability. An employer is not ordinarily liable for failing to accommodate a disability of which it had no knowledge. Second, the employee cannot expect the employer to read his or her mind and know he or she secretly wanted a particular accommodation and sue the employer for not providing it. It is an employee’s responsibility to understand his or her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list of restrictions which must be met to accommodate the employee.)  Here the FAC is devoid of allegations identifying the claimed disability, indicating whether it was obvious or that Plaintiff otherwise put Defendant on notice of the disability and the need for reasonable accommodation.  Thus, there are no facts alleged showing that a duty was triggered on the part of Defendant to engage in the interactive process.