2012-00137701-CU-OE

Raleigh Bowen vs. State of California, Dept. of Justice

Nature of Proceeding: Motion to Stay Proceedings

Filed By: Khangura, Simerdip

Defendant DOJ’s Motion to Stay Proceedings is denied.

Defendant seeks a stay of this action pending the resolution of the appeal and re-trial
of Bowen’s prior lawsuit against it. The motion is brought on the ground of the court’s
inherent authority and under CCP 128(a)(8) which provides in pertinent part that the
court has the power to “amend and control its processes and orders so as to make
them conform to law and justice.” Of course, under CCP §916, “the perfecting of an
appeal stays proceedings in the trial court upon a judgment or order appealed
therefrom, or upon the matters embraced therein or affected thereby…but the trial
court may proceed upon any other matter embraced in the action and not affected by
the judgment or order.” See also Varian Medical Systems, Inc. v. Delfino (2005) 35
Cal. 4th 180.) Even so, the court finds the appeal does not touch on the claims in the
instant action.

Defendant contends that many of the issues in this case overlap with the prior action
and must first be resolved before this case can be fully litigated. Defendant contends
that plaintiff is attempting a second “bite at the apple” by arguing that the conduct
underlying the first action should provide a basis for the second action. The Court has
reviewed the order on summary adjudication in the earlier action (07AS03120) and the
judgment after trial and finds that the allegations of this action are distinct from the
allegations of the first action. The allegations of the instant action are based on events
beginning in 2011.

The fact that plaintiff has alleged facts that supported the first case in this case does
not mean that he is bringing the same causes of action. Plaintiff has alleged that he
made additional complaints of protected conduct in 2012 and is not relying only on the
2006 complaint to FEHA. Even if his race discrimination claim is barred when the
ruling in the first case becomes final, he is not prevented from alleging a claim for
retaliation under Yanowitz v Loreal USA (2005) 36 Cal.4th at 1043 (retaliation claim
may be brought by an employee who has complained of or opposed conduct that the
employee reasonably believes to be discriminatory even when a court determines that
the conduct was not actually prohibited by the FEHA).

A final ruling on the causes of action in the earlier case would not necessarily bar the
claims alleged herein which are based on later acts.

The request for a discretionary stay based on the Court’s inherent power is also
denied, as a stay of the proceedings would be inefficient, cause unnecessary delay
and be prejudicial to the parties, given that the instant action is based on separate and
distinct acts, temporally separated from the claims in the prior action, presently on
appeal.

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

2012-00137701-CU-OE

Raleigh Bowen vs. State of California, Dept. of Justice

Nature of Proceeding: Hearing on Demurrer

Filed By: Khangura, Simerdip

Defendant’s Demurrer to certain causes of action in the First Amended Complaint is
sustained with leave to amend for failure to state facts sufficient to constitute a cause
of action.

The Court determines that the demurrer is timely, based on the fact that it was
previously dropped from calendar at plaintiff’s request due to settlement negotiations.

Plaintiff alleges that he is a 52 year old African American man who has been an
employee of defendant DOJ since being hired as a special agent in 1991. Plaintiff
alleges claims of discrimination, harassment and retaliation arising from his
employment with the Department of Justice. Plaintiff alleges that in March 2012
defendant Parker was transferred back into the Bureau of Gambling Control as
plaintiff’s direct supervisor. Plaintiff alleges his medical providers previously provided a
medical excuse not to work with Parker due to plaintiff’s disabilities of “depression,
anxiety, and stress” attributed to Parker. (FAC ¶17)

Plaintiff filed an earlier Complaint alleging retaliation arising out of a 2006 FEHA
complaint. (See Defendant’s Request for Judicial Notice, Case No. 07AS03120) That
case was resolved against plaintiff at summary adjudication and, later, trial. There, the
court granted defendant’s summary adjudication of the disability, California Family
Rights Act, retaliation and defamation claims (See ROA #237) However, in ruling on
the disability claims the court assumed for purposes of the motion that plaintiff had
alleged a valid disability in claiming he could not work for a particular supervisor, but
granted the motion on other grounds. At trial, the jury found against plaintiff on both
the race discrimination and race harassment claims (See ROA 431, Case
07AS03120, Special Verdict) Plaintiff has appealed the judgment in that case and the
case is currently on appeal. Therefore the judgment in that case is not final.

The claims in the instant case arise from events that occurred from June 2011 to the
present. Plaintiff has alleged facts relating to his racial harassment/discrimination
claims that supported his earlier unsuccessful case that is now on appeal. (FAC ¶ 15)
Plaintiff alleges that he had a good faith belief that he was retaliated from 2011 to the
present for complaining about race harassment and discrimination. He alleges he
complained of race discrimination in May 2012. (FAC¶ 18) Plaintiff now alleges that he
has a disability discrimination claim arising from working with a particular supervisor,
Parker, whom he contends is a racist.

2nd cause of action Failure to Prevent Discrimination, Harassment and
Retaliation: Sustained with leave to amend for uncertainty. It appears that plaintiff is
alleging disability discrimination but not clear whether he is alleging race
discrimination/harassment. He alleges a “protected class” in this cause of action but it
is not clear what class he refers to or what conduct constitutes failure to prevent
discrimination, harassment, and/or retaliation. If more than one claim is alleged,
plaintiff is directed to comply with CRC 2.112 and set forth each cause of action
separately.

3rd cause of action Disability Discrimination, 4th cause of action Failure to
Engage in the Interactive Process, and 5th cause of action for Failure to Make a
Reasonable Accommodation: Sustained with leave to amend for failure to state facts
sufficient to constitute a cause of action.

Plaintiffs First Amended Complaint (FAC) alleges that he suffers from depression and
anxiety, but fails to allege facts that such conditions “limit a major life activity” as
required by the Fair Employment and Housing Act (FEHA). (See Gov. Code, §§12940
and 12926G).) Therefore, plaintiff has not alleged a disability under FEHA. Plaintiff
must allege that he either suffers from, or be perceived to suffer from, a qualifying
disability. (Gov. Code, § 12926(j), (n), (m).) Plaintiff points to paragraphs 17, and 28-
30 of his FAC to argue that he properly pled that his disability prevented him from
working, which is specified by the FEHA as
a “major life activity.” (Opp. at 2:22-3:4.) However the FAC alleges that Plaintiffs
doctors provided him an excuse to not work with James Parker, his direct supervisor,
and that working with Parker caused him to suffer from depression, anxiety, and
stress. (FAC at 17, 28-30.) This is not an allegation that Plaintiffs depression and
anxiety prevented him from working. Indeed, the FAC is explicit that Plaintiff “can and
does perform the essential functions of this job.” (FAC at para. 28.) There are no
allegations in the FAC that Plaintiff cannot work due to his depression, anxiety, and
stress or that the Department was aware of any such disability.

Plaintiffs disability claims fail because his alleged disability is his inability to work with
James Parker, his direct supervisor, which is not a disability under the law. The
inability to work for a particular supervisor is not a disability and there is no duty to
accommodate such a medical restriction. Hobson v. Raychem Corp . (1999) 73
Cal.App.4th 614, 628 [disapproved on other grounds by Colmenares v. Braemer
Country Club, Inc. (2003) 29 Cal.4th 1019, 1031 n. 6].) Specifically, “the inability to
perform one particular job, or to work under a particular supervisor, does not constitute
a qualified disability.” (Hobson, supra, at 628.) 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.

Plaintiff may file and serve a Second Amended Complaint on or before May 23, 2014.
Response to be filed and served within 15 days of service of the SAC, 20 days if
served by mail.

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

Item 10 2012-00137701-CU-OE

Raleigh Bowen vs. State of California, Dept. of Justice

Nature of Proceeding: Motion to Strike
Nature of Proceeding: Motion to Strike

Filed By: Khangura, Simerdip

Defendant’s Motion to Strike allegations of the First Amended Complaint is denied.

Defendant contends that plaintiff’s narrative allegations (See Ex. A attached to Notice)
are irrelevant and improper under CCP 435. The allegations sought to be stricken
concern race discrimination that formed the basis of the prior case, and claims for
disability discrimination based on working with Parker. Plaintiff alleges that he was
retaliated against for filing a FEHA complaint and that part of the retaliation involved
being placed with a supervisor in contravention of a doctor’s note. Whether the
placement of plaintiff with a supervisor with whom he does not get along constitutes
disability discrimination or not does not necessarily render the allegations irrelevant,
improper or contrary to law. As for the retaliation claim, plaintiff need not necessarily
establish that he states an underlying cause of action for race discrimination or
harassment if he can alleged a good faith belief that he opposed such conduct and
was retaliated against for doing so. The perceived race discrimination allegations may
be relevant to the claim for retaliation.

There is no collateral estoppel effect of the judgment in the earlier case on the race
and disability claims. The prior action is not final as it is on appeal. Moreover plaintiff
contends that his claims in this action are based on separate acts that occurred after
the earlier action.

Motions to strike are disfavored. Courts considering such motions must presume the
allegations contained therein are true and must consider those allegations in context.
th
Clauson v Superior Court (1998) 67 Cal.App.4 1253, 1255. The use of the motion to
strike should be cautious and sparing. It should not be a procedural “line item veto” for
the civil defendant. PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.

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