Gonzalez vs. New Century Enterprises, LLC

Defendant New Century Enterprises, LLC demurs to the third, fifth, and sixth causes of action asserted in the Complaint filed by Plaintiff Rosa Maria Gonzalez. The demurrer is OVERRULED as to the third cause of action and SUSTAINED as to the fifth and sixth causes of action. Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 15 days of service of notice of ruling.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Page 16 of 27

Third Cause of Action for Failure to Prevent Discrimination and Retaliation

Plaintiff’s third cause of action alleges failure to prevent discrimination or retaliation in violation of the Fair Housing and Employment Act (“FEHA”). The elements of this claim are: (1) the plaintiff was subjected to discrimination or retaliation; (2) the defendant failed to take all reasonable steps to prevent discrimination or retaliation; and (3) this failure caused the plaintiff harm. (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43–44.)

Defendants concede the Complaint alleges facts sufficient to constitute causes of action for discrimination and retaliation. The Complaint alleges Defendants failed to take all reasonable steps necessary to prevent discrimination and retaliation from occurring. (Compl. ¶¶ 91-93.) More specifically, the Complaint alleges Plaintiff’s manager demanded Plaintiff write a letter to the company indicating she could not return to work after Plaintiff requested reasonable accommodations. (Id. at ¶¶ 31-33.) Subsequently, Plaintiff was terminated during a meeting with her manager the day before Plaintiff was due to return to work after an extended medical leave. (Id. at ¶¶ 41-53.) At her manager’s direction, Plaintiff spoke with a human resources representative. (Id. at ¶ 54.) The representative reiterated the fact that the company was terminating Plaintiff’s employment. (Id.)

The Complaint’s allegations sufficient to state a cause of action for failure to prevent discrimination and retaliation. The demurrer is overruled as to the third cause of action.

Fifth Cause of Action for Failure to Accommodate

“To establish a failure to accommodate claim [under FEHA], [an employee] must show (1) [the employee] has a disability covered by FEHA; (2) [the employee] can perform the essential functions of the position; and (3) [the employer] failed reasonably to accommodate [the employee’s] disability.” (See Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092, 1107.) “A ‘reasonable accommodation’ means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. [Citation.] ... [A]n accommodation is not reasonable if it produces an undue hardship to the employer ....” (See id. at pp. 1107–1108.)

The Complaint does not allege facts showing Plaintiff can perform the essential functions of her position. Plaintiff argues that her work status report served as a notice to Defendant that she could perform her work duties if the work restrictions were accommodated. (Opp. at 9:3-4.) The Complaint alleges Plaintiff texted her manager and supervisors pictures of her work status reports. (Compl. ¶¶ 27, 30, 33, 42-43.) Without more, these allegations are insufficient to show Plaintiff was able to perform the essential functions of her position. The Complaint also included two images of the work status reports. (Id. at ¶¶ 30, 37.) These images, however, at not legible. The demurrer is sustained as to the fifth cause of action.

Sixth Cause of Action for Whistleblower Retaliation under Labor Code Section 1102.5

Labor Code section 1102.5 “ ‘reflects the broad public policy interest in encouraging workplace whistle-blowers to report unlawful acts without Page 17 of 27

fearing retaliation.’ [Citation.] An employee injured by prohibited retaliation may file a private suit for damages.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709; see also Lab. Code, § 1105.) To plead a violation of Labor Code section 1102.5, plaintiff must allege she engaged in whistleblowing activity protected by the statute, and that the protected activity was a contributing factor in her suffering an adverse employment action. (Lab. Code, § 1102.6; Lawson, supra, 12 Cal.5th at p. 712.)

The sixth cause of action alleges Defendant subjected Plaintiff to an adverse employment action by retaliating against Plaintiff. (Compl. ¶ 128.) As Plaintiff argues, the Complaint alleges Plaintiff engaged in protected activity by requesting reasonable accommodations and refusing to submit a false letter. (Id. at ¶¶ 31-33.) The Complaint, however, does not allege Plaintiff engaged in activity protected by Labor Code section 1102.5, namely that Plaintiff disclosed information Plaintiff reasonably believed disclosed a violation of non-compliance with federal or state law to individuals with authority over her. The demurrer is sustained as to the sixth cause of action.