Case Name: Wolfe Cevorov v. Contemporary Services Corporation
Case No.: 2017-CV-307338

Factual and Procedural Background

This is an employment action. On April 27, 2015, defendant Contemporary Services Corporation (“CSC”) hired plaintiff Wolfe Cevorov (“Plaintiff”) as a security guard at various locations. (First Amended Complaint [“FAC”] at ¶ 6.) In 2011, prior to his employment, Plaintiff had suffered two serious falls and sustained injuries to his lower back, left hip, left knee, and left ankle. (Id. at ¶ 9.) As a result of the injuries, Plaintiff suffered a torn meniscus and bone spurs in his ankle, both of which required orthoscopic surgery. (Ibid.) Thus, at the time Plaintiff was hired by CSC, he required the following work restrictions: (1) alternating positions; (2) combination of walking, sitting and standing; (3) no crouching, bending, stooping, climbing, or lifting anything over 20 pounds from his waist over his shoulders; and (4) no pushing and pulling from 10-20 pounds. (Ibid.) Plaintiff’s disability limited and impaired his ability to perform his work functions without accommodations. (Ibid.)

During his employment, CSC failed to provide Plaintiff with an adequate chair to accommodate his restrictions, even though the company had knowledge of his work restrictions. (FAC at ¶¶ 10, 12-19.) In fact, Plaintiff always attended work with a walking cane as necessitated by his disability. (Id. at ¶ 10.) On June 6, 2015, after being forced to stand by his supervisors for the entire event, Plaintiff began experiencing pain in his back. (Id. at ¶ 21.) The next day Plaintiff’s pain became more severe and his groin area and legs began to hurt and feel numb. (Id. at ¶ 22.) Following his shift on June 11, 2015, Plaintiff informed his supervisors that he was taking time off to recuperate due to the severe pain caused by the company’s failure to accommodate his disability. (Id. at ¶ 23.)

On June 26, 2015, Plaintiff returned to work and informed his supervisors about the company’s failure to accommodate his restrictions. (FAC at ¶ 24.) However, Plaintiff’s supervisors still failed to provide him with an adequate chair and accommodate his disability. (Ibid.) Plaintiff’s last shift was on July 1, 2015 where again he was not provided with an adequate chair causing him to suffer severe pain. (Id. at ¶ 25.) Plaintiff informed the company that he needed time to recuperate and would only return to work if his restrictions were accommodated. (Id. at ¶ 26.) When the company refused to accommodate his disability, Plaintiff resigned because of CSC’s failure to engage in the interactive process and accommodate his disability. (Ibid.)

On June 6, 2017, Plaintiff filed the operative FAC setting forth causes of action for: (1) disability discrimination in violation of the California Fair Employment and Housing Act (“FEHA”); (2) failure to engage in the interactive process in violation of FEHA; (3) failure to provide reasonable accommodations in violation of FEHA; (4) retaliation in violation of FEHA; (5) failure to maintain an environment free from discrimination, retaliation, and harassment; and (6) constructive wrongful termination in violation of FEHA.

Currently before the Court are CSC’s demurrer and motion to strike to the FAC. Plaintiff filed written oppositions. CSC filed reply papers.

Demurrer to the FAC

CSC demurs to the first, second, third, fourth, fifth, and sixth causes of action in the FAC on the ground that each claim fails to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Legal Standard

“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.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

First Cause of Action: Disability Discrimination

The first cause of action is a claim for disability discrimination in violation of FEHA. “A prima facie case of disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 378.)

CSC argues that the claim for disability discrimination is subject to demurrer as Plaintiff fails to allege that he is a qualified individual with a disability. That is, a qualified individual is someone who is able to perform the essential functions of his or her job, with or without reasonable accommodation. (See Green v. State of California (2007) 42 Cal.4th 254, 262.) This argument is not well taken as Plaintiff alleges that he was a qualified individual within the meaning of the FEHA and could perform the essential functions of his position with or without a reasonable accommodation. (See FAC at ¶ 32.) Such allegations are sufficient to state a claim and must be accepted as true for purposes of demurrer.

Consequently, the demurrer to the first cause of action on the ground that it fails to state a claim is OVERRULED.

Second Cause of Action: Failure to Engage in the Interactive Process

The second cause of action is a claim for failure to engage in the interactive process. The FEHA imposes a duty on the employer “to engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations…” (Gov’t Code, § 12940, subd. (n).) “An employer’s failure to engage in this process is a separate FEHA violation. [Citation.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1193.)

“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.’ [Citation.]” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) “ ‘Although it is the employee’s burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.’ [Citation.]” (Ibid.) “Once the interactive process is initiated, the employer’s obligation to engage in the process in good faith is continuous.” (Ibid.)

CSC argues that the second cause of action is subject to demurrer as Plaintiff fails to allege that he is a qualified individual with a disability. This argument lacks merit for the reasons stated above on the demurrer to the first cause of action. Alternatively, CSC contends that Plaintiff fails to allege that he recommended a reasonable accommodation that would have allowed him to perform the essential functions of his job. (See Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 984 [plaintiff bears the burden of proving that a reasonable accommodation was available before the employer can be held liable under the statute].)

Here, the reasonable accommodation appears to be the necessity for Plaintiff to have a chair and sit down during the course of his employment shifts. According to the FAC, Plaintiff had clearly made CSC aware of his need for a chair at various times during his employment and the company refused to accommodate him. (See FAC at ¶¶ 11-14, 16.) A reasonable accommodation would seem to be available as CSC did provide Plaintiff with a chair during one such event, albeit a defective one. (Id. at ¶ 15.) The fact that the chair did not ultimately accommodate Plaintiff’s disability further supports his contention that CSC did not operate in good faith during the interactive process. Whether or not CSC acted in good faith during the interactive process remains a question for the trier of fact which cannot be resolved on demurrer. Therefore, as pled, the Court finds that Plaintiff has alleged sufficient facts to state a claim for failure to engage in the interactive process.

Accordingly, the demurrer to the second cause of action on the ground that it fails to state a claim is OVERRULED.

Third Cause of Action: Failure to Provide Reasonable Accommodations

The third cause of action is a claim for failure to provide reasonable accommodations. “The FEHA imposes on employers the duty reasonably to accommodate their employees’ physical disabilities. [Citation.] [Government Code] [s]ection 12940, subdivision (m) provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citations.]” (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 766 [internal quotation marks omitted].)

CSC demurs to the third cause of action on the following two grounds: (1) Plaintiff fails to allege that he is a qualified individual; and (2) Plaintiff fails to allege that he recommended a reasonable accommodation that would have allowed him to perform the essential functions of his job. These arguments lack merit for the reasons stated above on the demurrer to the first and second causes of action.

Therefore, the demurrer to the third cause of action on the ground that it fails to state a claim is OVERRULED.

Fourth Cause of Action: Retaliation

The fourth cause of action is a claim for retaliation. “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L ‘Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042 (Yanowitz).)

CSC demurs to the fourth cause of action on the following three grounds: (1) Plaintiff fails to allege that he is a qualified individual; (2) Plaintiff fails to allege that he recommended a reasonable accommodation that would have allowed him to perform the essential functions of his job; and (3) Plaintiff fails to plead that he suffered an adverse employment action. The first and second grounds for demurrer lack merit for the reasons stated above on the demurrer to the first and second causes of action. With respect to the third ground for demurrer, an adverse employment action is one that “materially affect[s] the compensation, terms, conditions, or privileges of … employment.” (Davis v. Team Elec. Co. (9th Cir. 2008) 520 F.3d 1080, 1089; see also Yanowitz, supra, 36 Cal.4th at p. 1052 [stating “an adverse employment action must materially affect the terms and conditions, or privileges of employment to be actionable” in the FEHA context].) Here, the adverse action necessary to support retaliation is based on the fact that CSC constructively terminated Plaintiff from his employment. (See FAC at ¶ 68.) These facts are sufficient to state a claim for retaliation and must be accepted as true for purposes of demurrer.

Consequently, the demurrer to the fourth cause of action on the ground that it fails to state a claim is OVERRULED.

Fifth Cause of Action: Failure to Take All Reasonable Steps to Prevent Discrimination, Retaliation, and Harassment

The fifth cause of action is a claim for failure to prevent discrimination, retaliation, and harassment. CSC argues that this claim is redundant of the first, second, third, fourth, and sixth causes of action and thus should be dismissed. However, redundancy is simply not a ground for demurrer. (See McDonell v. American Trust Co. (1955) 130 Cal.App.2d 296, 303.) Also, at a minimum, Plaintiff has stated claims for disability discrimination and retaliation to support the fifth cause of action. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 289 [employers cannot be held liable for failing to take necessary steps to prevent discrimination or harassment, except where the actions took place and were not prevented].)

Accordingly, the demurrer to the fifth cause of action on the ground that it fails to state a claim is OVERRULED.

Sixth Cause of Action: Constructive Wrongful Termination in Violation of Public Policy

The sixth cause of action is a claim for constructive wrongful termination in violation of public policy.

An employer may, in an attempt to avoid liability for a wrongful termination, “refrain from actually firing an employee, preferring instead to engage in conduct causing him or her to quit.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251 (Turner) [overruled in part on another ground in Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479].) If the employer’s conduct “effectively forces an employee to resign,” this is a constructive discharge, and is “legally regarded as a firing rather than a resignation.” (Id. at pp. 1244-1245.) “[T]o establish a constructive discharge, an employee must plead and prove…that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a person in the employee’s position would be compelled to resign.” (Id. at p. 1251.)

An employee may not simply “ ‘quit and sue,’ ” claiming to have been constructively discharged. (Turner, supra, 7 Cal.4th at p. 1246.) The facts must support a finding that the resignation was “coerced,” rather than “simply one rational option for the employee.” (Ibid.) “The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer.” (Ibid.) Moreover, “the cases are in agreement that the standard by which a constructive discharge is determined is an objective one—the question is ‘whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.’ [Citation.]” (Id. at p. 1248, quoting Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 212.) In other words, the applicable standard is whether “ ‘the adverse working conditions [are] so intolerable’ ” or “unusually adverse” that “ ‘any reasonable employee would resign rather than endure [them].’ ” (Turner, supra, at p. 1247 [quoting Slack v. Kanawha County Housing (1992) 188 W. Va. 144].)

“Although situations may exist where the employee’s decision to resign is unreasonable as a matter of law, ‘[w]hether conditions were so intolerable as to justify a reasonable employee’s decision to resign is normally a question of fact. [Citation.]’” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827.) Here, prior to the start of his employment, Plaintiff informed CSC about his disability and his need for workplace restrictions. (FAC at ¶ 8.) During the course of his employment, CSC repeatedly rejected Plaintiff’s requests for an adequate chair to accommodate his disability. (Id. at ¶¶ 11-16.) As a result, Plaintiff experienced additional pain in his back, legs, and groin area. (Id. at ¶¶ 21-23.) Thereafter, Plaintiff spoke with his supervisors about his need for an accommodation and when the company refused to provide him one, he had no choice but to resign. (Id. at ¶¶ 24-26, 91.) Based on these allegations, the Court cannot say, as a matter of law, that Plaintiff’s decision to resign was unreasonable.

In addition, in order to sustain a tort for wrongful or constructive discharge in violation of public policy, an employee must allege his dismissal violated a policy that was fundamental, beneficial for the public and embodied in a statute or constitutional provision. (Turner, supra, 7 Cal.4th at pp. 1252, 1256; see Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 76, 90.) In support, Plaintiff alleges that CSC violated the public policy delineated in Labor Code section 1102.5 which is sufficient to overcome demurrer. (See FAC at ¶¶ 87-90.) Finally, contrary to CSC’s argument, Plaintiff has alleged sufficient facts for a constructive discharge to establish an adverse employment action.

Consequently, the demurrer to the sixth cause of action on the ground that it fails to state a claim is OVERRULED.

Motion to Strike Portions of the FAC

CSC moves to strike Plaintiff’s requests for attorney’s fees and punitive damages in the FAC. (See Code Civ. Proc., §§ 435, 436.)

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

Request for Attorney’s Fees

CSC moves to strike the request for attorney’s fees under Code of Civil Procedure section 1021.5 in connection with the sixth cause of action. In opposition, Plaintiff concedes that the request for attorney’s fees was made in error and thus should be stricken. Therefore, the motion to strike the request for attorney’s fees is GRANTED WITHOUT LEAVE TO AMEND.

Request for Punitive Damages

CSC moves to strike the punitive damage allegations in paragraphs 27, 41, 42, 52, 53, 62, 63, 72, 73, 82, 83, 95, and 96, and in the prayer for relief at paragraph 5 because they are not supported by facts constituting malice, oppression, or fraud.

Punitive damages may be recovered for violations of the FEHA. (See Monge v. Super. Court (1986) 176 Cal.App.3d 503, 509.) Pursuant to Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice.” (Civ. Code, § 3294, subd. (a).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Finally, “fraud” is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person or property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Punitive damages cannot be pleaded generally; that is, the complaint must allege facts showing statutory “oppression,” “malice” or “fraud.” Conclusory allegations that the defendant acted “willfully,” “maliciously,” etc. or with “conscious disregard,” are insufficient to support a claim for punitive damages; the plaintiff must plead facts to support such a conclusion. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Here, when read in its entirety, the Court finds that the FAC contains sufficient facts to support Plaintiff’s request for punitive damages. Though it is true, as CSC insists, that pleading conclusions of law does not fulfill the requirement that a plaintiff must plead ultimate facts showing an entitlement to punitive damages in order to withstand a motion to strike such relief, of critical importance is whether “the complaint as a whole contain[s] sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (See Perkins v., Super. Court (1981) 117 Cal.App.3d 1, 6 [emphasis added].) Thus, courts consider all of the allegations of the complaint in its entirety in order to determine whether an entitlement to punitive damages has been sufficiently pleaded. In the FAC, Plaintiff alleges that CSC had knowledge of his disability, intentionally discriminated against him because of that disability, and thereafter failed to engage him in the interactive process and reasonably accommodate his disability. (FAC at ¶¶ 8, 10-27, 30-63.) Plaintiff further alleges that CSC embarked on a campaign of discrimination against him and his complaints. (Id. at ¶ 77.) Finally, Plaintiff claims that such conduct was intended to cause him injury which, if proven is sufficient to establish malice and support an award for punitive damages. (Id. at ¶¶ 41, 52, 62.)

CSC also contends that there is no basis for punitive damages as Plaintiff fails to allege facts demonstrating that the alleged perpetrator was a managing agent of defendant.

“Generally, principal liability for punitive damages [does] not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. [Citation.] Thus, to establish that an individual is a managing agent, a plaintiff seeking punitive damages must show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business. [Citation.] In this context, corporate policy refers to formal policies that affect a substantial portion of the company and that are of the type likely to come to the attention of corporate leadership.” (CRST, Inc. v. Super. Ct. (2017) 11 Cal.App.5th 1255, 1273 (CRST) [internal quotation marks omitted].)

“The key inquiry thus concerns the employee’s authority to change or establish corporate policy. [Citation.] The fact that an employee has a supervisory position with the power to terminate employees under his or her control does not, by itself, render the employee a managing agent. [Citations.] Nor does the fact that an employee supervises a large number of employees necessarily establish that status. [Citation.]” (CRST, supra, 11 Cal.App.5th at p. 1273.)

According to the FAC, Plaintiff identifies Calvin Graber (“Graber’), the General Manager, and Monica Campbell (“Campbell”), the head of Human Resources, as managing agents who exercised substantial independent authority and judgment in their cooperate decision making such that their decisions ultimately determined corporate policy. (FAC at ¶¶ 19, 27.) Here, the fact that Graber and Campbell are identified as managing agents that allegedly determined corporate policy appears to be sufficient to establish liability for punitive damages for pleading purposes. Whether or not they actually determined or establish such corporate policy remains a factual issue that cannot be resolved on a motion to strike.

Based on the foregoing, the motion to strike the request for punitive damages is DENIED.

The Court will prepare the order.