2012-00137019-CU-OE

Onalis Giunta vs. State of Ca., Dept of Corrections

Nature of Proceeding:        Hearing on Demurrer

Filed By:    Sommerdorf, Scott A.

Demurrer of Defendant California Department of Corrections and Rehabilitation
(“CDCR”) to the Third Amended Complaint is OVERRULED in part and SUSTAINED in
part without leave to amend.

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Plaintiff’s verified Third Amended Complaint sets forth five causes of action: the 1   for
Violation of Labor Code, Sec. 1102.5, the 2nd For Violation of Labor Code §§ 6310,
the 3rd For Violation of Whistleblower Protection Act, Gov. Code § 8457, the 4th For

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Failure To Accommodate, Gov. Code § 12940(m) and the 5   For  Failure to Engage In
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the Interactive Process, Gov. Code § 12940(n).  Defendant demurs to the 1                          , 4   and 5
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Demurrer to the 1   for Violation of Labor Code, Sec. 1102.5, is OVERRULED.

The elements of a section 1102.5(b) retaliation cause of action require that (1) the
plaintiff establish a prima facie case of retaliation for the employee’s disclosure of a
violation of state or federal statute, or a violation of or noncompliance with a local,
state, or federal rule or regulation, (2) the defendant provide a legitimate,
nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is
merely a pretext for the retaliation. Patten v. Grant Joint Union High School Dist.
(2005)134 Cal. App. 4th 1378, 1384 .

Here, the alleged “whistleblowing” protected activity was plaintiff’s written memo to
Warden Hill on Nov. 18, 2010. Although the memo is not attached to the TAC, its
contents are sufficiently described to allow the Court to discern that plaintiff was
complaining about a threat of workplace violence (a subordinate coworker she had
reprimanded, threatened to bring a gun to work and kill her), and to support the legal
conclusion that she believed that she was reporting a violation of state law to a
governmental authority and therefore “engaged in protected activity”.

The adverse employment action alleged, is defendant’s refusal to transfer her away
from the danger of workplace violence, and its refusal to rehire her when she had
transferred and then requested and was denied a return transfer after the subordinate
had left Folsom.

The Court finds that the plaintiff has stated facts sufficient to constitute a cause of
action.

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Demurrer to the 4   for Failure to Accommodate, Gov. Code § 12940(m) and the 5                           For
Failure to Engage in the Interactive Process, Gov. Code § 12940(n) is SUSTAINED,
without leave to amend.

Plaintiff here alleges that she was suffering from PTSD and was taken off work due to
stress. She presented a doctor’s note stating the restriction that she was not to be in
the same place as her subordinate. In other words, she could perform her duties as a
supervising dental assistant, just not at Folsom Prison around one individual
subordinate.

This case, where plaintiff alleges she cannot work with her subordinate, is analogous
to cases where a subordinate does not wish to work with his or her supervisor.   Courts
have routinely found such claims of “selective disability” based on a desire to not work
for certain people inadequate to demonstrate a substantial limitation on the ability to
work. Lancaster v. County of Yolo, (E.D. Cal. 2007) 2007 U.S. Dist. LEXIS 47374, and
cases cited therein. “A disability is a part of someone and goes with her to her next job.
A  personality conflict, on the other hand, is specific to an individual . . . .”  Palmer v.
Circuit Court, Social Serv. Dep’t (N.D. Ill. 1995) 905 F. Supp. 499, 507. In Adams v.
Alderson (D.D.C. 1989)  723 F. Supp. 1531, the court held that a personality conflict
with an “antagonizing supervisor” did not constitute a disability under the ADA,
because it was a transitory phenomenon that can be expected to disappear when the
“psychosocial stressor” is removed. In short, the inability to work with a particular
supervisor/person is not a disability and does not require accommodation. See Byrnes
v Lockheed-Martin, Inc. (N.D. Cal. 2005) 2005 WL 3555701. Analogously, the major
life activity of working is not “substantially limited” if a plaintiff merely cannot work
under a certain supervisor because of anxiety and stress related to his review of her
job performance.   Weiler v Household Finance Corp. (1996) 101 F.3d 519, 524.
Plaintiff must allege that the particular disability limited a major life activity. Sandell v
Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 311.

Because here plaintiff cannot meet her burden to demonstrate a qualifying disability,
she likewise cannot maintain a failure to reasonably accommodate claim. Kennedy v.
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Applause (9   Cir. 1997) 90 Fed.3d 1477, 1481-1482.

Defendant shall file and serve its Answer to the remaining causes of action not later
than Thursday, May 8, 2014.

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