Feuersinger v. Rogers

Kirwan, supra, 39 Cal.3d at 318.)

Second Cause of Action: Hostile Work Environment and Fifth Cause of Action: Harassment

Defendants demur to these causes of action on the grounds that plaintiff fails to state causes of action. In the second cause of action, plaintiff alleges a Hostile Work Environment against defendants the County, Perez, and Gonzalez, in violation of Government Code section 12940 subdivision (j). In the fifth cause of action, she alleges Harassment Due to Physical Disability against all defendants in violation of Government Code section 12940, subdivision (a).

To allege hostile work environment in violation of FEHA, a plaintiff must allege she was subjected to harassing conduct that was (1) unwelcomed, (2) because of a disability, and (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment. (Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 627.)

Plaintiff in her Third Amended Complaint (“TAC”) has alleged that she sustained a neck and trapezius muscle injury, resulting in neuropathy and nerve damage, and that this constitutes a physical disability under Government Code section 12926, subdivisions (m)(1)(A) and (B). (TAC, ¶ 15.) Defendants do not appear to dispute that this qualifies as a disability. Plaintiff has alleged that the “harassing conduct” was unwelcome. (Id., ¶ 54.) Plaintiff has alleged that “Gonzalez made constant comments” to Rogers about plaintiff taking time off and breaks and “constantly told” plaintiff that plaintiff was faking her injuries. (Id. at ¶ 26.)

Plaintiff has also added allegations that Gonzalez would constantly stare at plaintiff in a way plaintiff perceived as expressing disapproval. (Ibid.) Plaintiff has also alleged that Perez scolded her for the amount of time she took off work following the injury. (Id. at ¶ 24.) Plaintiff has added allegations describing the alleged severity and pervasiveness. The court overrules the demurrer to the second cause of action.

To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show (1) she was a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on the plaintiff's membership in an enumerated class; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563.) “[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives[.] [C]ommonly necessary personnel management actions do not come within the meaning of harassment.” (Roby v.

McKesson Corp. (2009) 47 Cal.4th 686, 707, quoting from Reno v. Baird (1998) 18 Cal.4th 640, 646.)

As discussed above, plaintiff alleges the fifth cause of action against all defendants. However, for defendant Rogers, plaintiff has not alleged any conduct which is not related to personnel management actions. Plaintiff alleges Rogers’ reluctance to prepare an injury report based on timing of the injury, a call regarding placing plaintiff on a leave of absence, receiving a complaint from plaintiff, and instructing plaintiff to pursue FMLA for a diagnosis of lupus. (TAC, ¶¶ 17, 21, 27, 32-33.) While the court is satisfied that plaintiff has sufficiently alleged the fifth cause of action as to defendants County of Fresno, Perez, and Gonzalez, the court would agree that the pleadings are insufficient as to defendant Rogers. Thus, the court overrules the demurrer as to defendants County of Fresno, Perez, and Gonzalez, but sustains as to defendant Rogers, with leave to amend.

Third Cause of Action: Retaliation

“Past California cases hold that in order to 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, internal citations omitted.)

In her TAC, plaintiff has alleged that she needed time off to attend medical appointments, that these appointments were related to her disabilities, that she requested such as an accommodation, but was ultimately denied and placed on a PIP due to her absences when she attended medical appointments. (TAC, ¶ 63.) Plaintiff has sufficiently alleged the third cause of action. The court overrules the demurrer to this cause of action.

Sixth Cause of Action: Failure to Accommodate and Seventh Cause of Action: Failure to Engage in Good Faith Interactive Process

To establish a failure to accommodate claim, plaintiff must show (1) she has a disability covered by FEHA; (2) she can perform the essential functions of the position; and (3) her employer failed reasonably to accommodate her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256–257.) Related to the reasonable accommodation, under FEHA, it is an unlawful practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one. (Govt. Code, § 12940, subd. (n).)

Plaintiff claims that she requested the County make reasonable accommodations for her physical disability so that she would be able to perform the essential job requirements. (TAC, ¶ 90.) She asserts that the County refused to accommodate her and also refused to discuss any other potential reasonable accommodation it might afford to plaintiff. (Ibid.) She argues that the County failed to engage in a good faith interactive process with her after she reported her disability. (Id. at ¶ 99.)

Plaintiff alleges that she had several restrictions such as not turning her neck, and lifting and pulling restrictions. (TAC, ¶ 19.) The County accommodated her for about two weeks, but then plaintiff claims she was told that was being placed on a leave of absence since the County could not accommodate her as they needed employees on the floor to help with clients. (Id. at ¶ 21.) When she returned from her leave, plaintiff alleges that she was placed on a Performance Improvement Plan (“PIP”) due to her absences caused by lack of accommodation. (Id. at ¶ 25.) The TAC purports that she was terminated under the context of attendance issues, which stemmed from the County’s failure to accommodate her despite knowing about her injury, doctor’s advice, and her approval for FMLA accommodation. (Id. at ¶¶ 23-35.)

Plaintiff has added allegations that she was able to perform her job duties, if provided the accommodation of one extra day off per month for attending medical appointments. (TAC, ¶ 33.) Plaintiff alleges her job duties were clerical and administrative, including tasks such as phone calls, making copies, managing correspondence, and providing information to the public. (Ibid.) As such, plaintiff has alleged her ability to perform her job duties, what these duties were, and the accommodation requested. She has also alleged that while the accommodation was approved, she was terminated for using the day off accommodation. (Id. at ¶¶ 33-35.) To the extent defendants challenge plaintiff’s claims, these challenges would go to the 5

merits, which is inappropriate on demurrer. Plaintiff has sufficiently alleged the sixth and seventh causes of action. The court overrules the demurrers to these causes of action.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: DTT on 5/26/2026. (Judge’s initials) (Date)

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