2018-00237181-CU-WT

Raeona Bell vs. State of California

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Papst, Kelsey E.

Defendant State Water Resources Control Board’s demurrer to Plaintiff Raeona Bell’s first amended complaint (“FAC”) is overruled.

The Court considered Plaintiff’s opposition even though it was served by regular mail.

Defendant was able to timely file a complete reply.

In this employment action Plaintiff alleges causes of action for pregnancy and disability discrimination in violation of FEHA, failure to accommodate in violation of FEHA and wrongful termination and retaliation in violation of FEHA.

Plaintiff alleges that she began working for Defendant as an Associate Government Program Analyst around July 31, 2014. (FAC ¶ 9.) She alleges that on June 24, 2016, she went on pregnancy leave and later disability leave. Plaintiff allegedly attempted to return to work on June 16, 2017 but was unable to do so due to her continuing mental disability symptoms. (FAC ¶ 10.) Plaintiff alleges that she contacted her supervisor regarding her continuing symptoms and submitted a new doctor’s note stating that she could return to work without restrictions on July 17, 2017. (FAC ¶ 11.) On July 19, 2017, Plaintiff alleges that her supervisor informed her that Defendant could not approve her leave of absence beyond 30 calendar days and that she was expected to return to work and that if she needed reasonable accommodations she should contact “EEO.” (FAC ¶ 12.) On July 20, 2017, Plaintiff informed her supervisor that her doctor applied for SDI benefits and that her disability leave needed to be extended again. On July 28, 2017, Plaintiff submitted her doctor’s note taking her off work until August 31, 2017. (FAC ¶ 13.) On July 26, 2017, Defendant allegedly terminated Plaintiff due to being AWOL. (FAC ¶ 14.)

First Cause of Action (Pregnancy/Disability Discrimination)

Defendant’s demurrer is overruled.

In order to plead a prima facie case for discrimination, a plaintiff must show that he or she (1) was a member of a protected class; (2) was performing competently in the position he or she held; (3) suffered an adverse employment action; and (4) some other circumstance suggesting a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Defendant argues that Plaintiff has failed to allege that she suffered an adverse action and failed to allege a discriminatory motive.

With respect to adverse action Defendant argues that Plaintiff’s constructive discharge cannot constitute adverse action. To that end Defendant cites to Government Code § 19996.2(a) which provides that “[a]bsence without leave, whether voluntary or involuntary, for five consecutive working days is an automatic resignation from state service, as of the last date on which the employee worked.” An unapproved absence for five or more working days is not considered a termination but is “deemed to be an abandonment of employment or a constructive resignation” under the AWOL statute. ( Coleman v. Department of Personnel Admin. (1991) 52 Cal.3d 1102, 1111.) “The employee’s unapproved absence is deemed to be an abandonment of employment or a constructive resignation.” (Id.) Coleman states that “it is the employee who severs the relationship, not the State” and that the AWOL determination “carries no stigma” because the employee is free to re-apply for employment with the State or seek reinstatement. (Id. at 1115, 1120-1121.) Whether to invoke the AWOL statute is in the State’s discretion and requires the State to make a factual finding that the employee has been absent for five consecutive working days without leave. (Id. at 1118.)

Coleman does not address the question presented here. Instead, Coleman concerned whether the AWOL provision of Government Code section 19996.2(a) was self-executing and automatic, or whether it was subject to the state’s discretionary application, and then what procedural safeguards were due to the employee whose employment “right” was in jeopardy due to a claimed AWOL event. Coleman held that the AWOL was not automatic, was subject to the State’s discretionary exercise, and required minimum procedural safeguards before the ultimate separation (deemed resignation) of the employee could be finalized. Coleman concerns only the narrow issues to be considered and decided in a section 19996.2(a) hearing and does not hold that a party who is deemed to have resigned under that section cannot allege an “adverse action” under FEHA. Coleman does not support the proposition that an AWOL separation can never constitute an “adverse employment action” as that term is employed in FEHA litigation.

If a state employer “misuses” the AWOL statute to terminate an employee for unlawful or discriminatory purposes, the resulting separation from employment has the same “adverse” impact – the employee’s unlawful loss of employment. The issue in this action is whether Defendant, allegedly aware of Plaintiff’s disability and her request for additional leave, nevertheless invoked the AWOL statute and declined to provide her additional leave for her alleged disability. The Court finds that the allegations that she was denied additional leave and then terminated because of her pregnancy and pregnancy leave, at least for pleading purposes, is sufficient for purposes of alleging an adverse action.

The Court is not bound by any unpublished federal decision interpreting Coleman as finding an AWOL termination can never be an adverse action.

Under FEHA, an adverse employment action is an act or a course or pattern of conduct that, taken as a whole, materially and adversely affects the terms, conditions, or privileges of an employee’s employment. An adverse employment action includes conduct that is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1053-1054; Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) An employee’s deemed resignation through the alleged misuse of the AWOL statute may constitute an adverse employment action.

Here Plaintiff has alleged that she was on pregnancy and related mental disability leave and that she informed her supervisor that she needed her leave extended and submitted a doctor’s note in June 2017 stating that she could return on July 17, 2017. (FAC ¶ 10, 11.) She was then informed by her supervisor on July 19, 2017 that she was expected to return to work and that if she needed accommodations she should contact EEO. (FAC ¶ 13.) Plaintiff allegedly contacted her supervisors the next day informing Defendant that her doctor was applying for SDI benefits and that her disability leave needed to be extended again. (FAC ¶ 13.) She submitted a doctor’s note on July 28, 2017 taking her off work until August 31, 2017. (Id.) Defendant however terminated her for allegedly being AWOL on July 26, 2017. Plaintiff has alleged sufficient facts to support a claim that Defendant allegedly misused the AWOL statute as to her disability leave in light of the allegations that she informed them she needed her leave extended days prior to being terminated for allegedly being AWOL.

In addition, the Court rejects the argument that Plaintiff failed to allege discriminatory

intent. Plaintiff alleged that Defendant denied her additional leave and terminated her because of her pregnancy and pregnancy leave. (FAC ¶ 18.) Contrary to Defendant’s claim, this is an allegation of ultimate fact that must be accepted as true for purposes of demurrer. Whether Plaintiff can prove this allegation is not relevant for purposes of the instant demurrer. Nevertheless, Plaintiff has also alleged that she was contacted by Defendant on July 19, 2017 informing her that she was expected to return to work after her leave had expired on July 17, 2017 and that the next day Plaintiff informed Defendant that her doctor had applied for SDI benefits and that she needed her leave extended again. Plaintiff submitted the doctor’s note taking her off work until August 31, 2017 on July 28, 2017 yet Defendant invoked the AWOL statue two days earlier. The timing and circumstances of the invocation of the AWOL statute are sufficient for pleading purposes with respect to the intent element as at a minimum it suggests that Plaintiff was terminated as a result of being on leave for disability or attempting to request additional leave with respect to her disability.

The demurrer to the first cause of action is overruled.

Second Cause of Action (Failure to Accommodate)

Defendant’s demurrer is overruled. “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” (Cuiellette v. Los Angeles (2011) 194 Cal.App.4th 757, 766.)

Defendant first argues that Plaintiff failed to plead that she had a disability during the relevant time period. Defendant argues that Plaintiff did not have a doctor’s note or “medical substantiation stating that Plaintiff was disabled between July 17 and July 17, 2018.” It argues that the FAC only shows she had a medical note showing a disability up to July 17 and did not submit a note until July 28, 2017 two days after Defendant invoked the AWOL statue. Defendant’s argument is a factual one not appropriately resolved on demurrer. Plaintiff alleged that she was pregnant and suffered from a mental disability. The allegations of the FAC fairly read, show that she had a continuing disability at all relevant times. Indeed, they show Plaintiff informed Defendant in June 2017 that her symptoms were continuing and that she needed her leave extended to July 17, 2017. After Defendant contacted her on July 19, 2017 informing Plaintiff that she was expected back at work, Plaintiff informed Defendant the next day that she needed her leave extended again. The case cited by Defendant for the proposition that a “lone, incomplete communication” from the employee’s coworker on the day the employee resigned was insufficient to put the employer on notice of the disability is inapposite. (Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App.5th 1150, 1168.) That case dealt with a motion for summary judgment and was not a pleading case. In any event, the allegations here are that Plaintiff herself informed Defendant directly of the need for extended leave due to her disability prior to Defendant allegedly invoking the AWOL statute. The potential impact of the doctor’s note being provided after the AWOL statute was invoked is a factual question not appropriate for demurrer.

Defendant next argues that Plaintiff failed to allege that she was a qualified individual. A person is a qualified individual if he or she can perform the essential duties of the position with or without reasonable accommodation. (Green v. California (2007) 42 Cal.4th 254, 261-262.) Here Plaintiff has specifically alleged that she “was a qualified

individual with an actual and perceived disability within the meaning of FEHA.” (FAC ¶ 20.) She alleges that “at all times during her employment she performed in a competent, satisfactory manner. Plaintiff is informed and believes that the reasonable accommodations which she was entitled to would not have created an undue burden for Defendants.” (Id. ¶ 21.) These allegations are sufficient. Defendant’s arguments that Plaintiff was not qualified because she did not return to work on July 17, 2017 even though she was in fact released to work on that day and thereafter submitted a medical note 11 days later that she needed to be off until August 31, 2017 are factual and not appropriately resolved on demurrer.

The Court would note that Defendant takes no issue with Plaintiff’s allegation that she suffered from a “mental” disability. While Plaintiff’s opposition offered to allege additional facts regarding the disability if necessary given that there was no specific challenge to the detail regarding the disability, no amendment is necessary on this point.

Defendant next argues that Plaintiff failed to allege that it did not reasonably accommodate her because as of July 17, 2017, the date she was supposed to return to work, it did not know she needed additional leave. Defendant points out that Plaintiff did not contact it until July 20, 2017 to indicate she needed additional leave and did not provide a doctor’s note substantiating the need for any reasonable accommodation between July 17, 2017 and July 26, 2017, the day the AWOL statue was invoked. Rather Defendant argues that Plaintiff simply informed her supervisor on July 20, 2017 that she needed an extension but did not specify for how long. Defendant cites case law indicating that while a request for finite leave may be a reasonable accommodation, an employer is not required to honor requests for indefinite leave. (Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 226-227.) Here, however, there is no allegation in the FAC that Plaintiff was requesting an indefinite leave, and a fair reading of the FAC indicates that she was simply asking for an additional extension until August 31, 2017. (FAC ¶¶ 13, 15.) Plaintiff’s allegations are sufficient for pleading purposes.

Third Cause of Action (Retaliation/Wrongful Termination)

Defendant’s demurrer is overruled. As with the first cause of action Defendant argues that Plaintiff has failed to allege an adverse action or any discriminatory/retaliatory motive. The demurrer is overruled for the same reasons the demurrer to the first cause of action was overruled.

The demurrer is overruled in its entirety.

Plaintiff’s request for judicial notice is denied. A ruling by another trial judge in this Court from 2012 has no bearing on this Court’s ruling upon the pleadings and issues presented in this motion, and is not a proper subject of judicial notice given unpublished state court opinions are not citable under the Rules of Court.

The Court did not consider Plaintiff’s declaration. It is a basic principle that a demurrer and a motion to strike “tests the pleadings alone and not the evidence or other extrinsic matters.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Extrinsic evidence may not properly be considered on demurrer or on a motion to strike. (Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.)

No later than November 29, 2018, Defendant shall file and serve its answer to the FAC.

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