SUZANNE CREEKMORE v. TOWN OF TIBURON, ET AL

I.

Background

Plaintiff Suzanne Creekmore (“Plaintiff”) brings this action against the Town of Tiburon (“Tiburon”) and Muchmore Than Consulting LLC (“MTC”) alleging numerous violations of the California Fair Employment and Housing Act (“FEHA”) during her employment and in her termination. Plaintiff alleges that Tiburon and MTC were joint employers of Plaintiff, with Tiburon being Plaintiff’s direct or general employer and MTC being Plaintiff’s indirect or special employer. (Complaint ¶8.)

Plaintiff’s complaint includes 12 causes of action, all of which are directed at Tiburon. MTC is named in eight of the causes of action.

At present, both Tiburon and MTC demur to all of the causes of action directed against them.

II. Legal Standard

“’... A general demurrer will lie where the complaint “has included allegations that clearly disclose some defense or bar to recovery.”’ A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.’ The demurrer admits the truth of all material facts properly pleaded, including all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law.” (Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5th 281, 288- 289, citations omitted.)

“’... “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”’” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292, citation omitted.)

III. Tiburon’s Demurrer

Tiburon’s demurrer is sustained as to the fifth and ninth causes of action only, with leave to amend.

1. First Cause of Action – Discrimination

1) Failure to State Sufficient Facts: “... To state a prima facie case of discrimination under FEHA, the plaintiff must show (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive. The ‘plaintiff must establish a causal nexus between the adverse employment action and her protected characteristic.’” (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 684-685, citations omitted.)

Tiburon argues that the cause of action is deficient because Plaintiff “fails to state any facts whatsoever to show a causal relationship between her sex, gender, age, marital status, reproductive health decision making, disability, and medical condition, and any purported adverse employment action (i.e., Tiburon’s filing of a disability retirement application on her behalf and subsequent separation from employment).” Without needing to address the other adverse employment actions Plaintiff contends she alleges, the Court finds that her allegations regarding her separation of employment are sufficient.

Plaintiff alleges that Ms. Muchmore (“Muchmore”) told her, after advising her Tiburon had decided to separate Plaintiff from her employment, that Muchmore did not believe Plaintiff could do the work of a director as a single mother. (¶52.) This establishes a causal connection between a protected status and an adverse employment action. Even if Plaintiff has not established a causal connection as to each of the alleged bases of discrimination, this does not require sustaining the demurrer. “...[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy. ...” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047; see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“... A demurrer does not lie to a portion of a cause of action. ...”].)

2) Uncertainty: Tiburon argues that the cause of action is uncertain because it improperly combines seven separate causes of action into a single claim. Even if Plaintiff technically has seven separate causes of action, her combining them into one does make the cause of action “so incomprehensible that [Tiburon] cannot reasonably respond.” (Morris, supra, 78 Cal.App.5th at 292.) Tiburon can admit or deny Plaintiff’s allegations. Overruled.

2. Second Cause of Action – Harassment

1) Failure to State Sufficient Facts: In Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170, the Court wrote:

To establish a prima facie case of unlawful harassment under FEHA, a plaintiff must show “(1) he was a member of a protected class; (2) he 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 his work performance by creating an intimidating, hostile, or offensive work environment; and (5) [defendant] is liable for the harassment. [Defendant] is liable only “if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

A showing that harassment created a hostile work environment requires a showing “’that the defendant’s conduct would have interfered with a reasonable employee’s work performance and would have seriously affected the psychological well-being of a reasonable employee.’” “The law prohibiting harassment is violated ‘when the workplace is permeated with discriminatory intimation, ridicule and insult that is “’sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’

(Citations and brackets omitted.)

Tiburon argues that the cause of action is deficient because Plaintiff “only pleads three stray remarks, with no dates identified, that are grossly insufficient to support a harassment claim[.]” Contrary to Tiburon’s argument, Plaintiff pleads more than “three stray remarks.” She alleges that prior to her maternity leave: Troy Bassett (“Bassett”) called a pregnant woman’s stomach a “’horrible belly’” and referenced physical changes that accompany pregnant in a disgusted manner in both private conversations and publicly during department meetings.

Bassett began acting hostile towards Plaintiff and falsely accused her of failing to fulfill her responsibilities. She told Plaintiff and others that she was “pissed” about the maternity leave because it would impact Bassett. (¶20.) When Plaintiff explained that she had temporarily reassigned some of her duties in order to ensure smooth operation of the department, Bassett accused Plaintiff of doing “’nothing all day’” in her job and told Plaintiff that taking maternity leave would make it clear she was not needed at work. (¶21.)

Dina Tasini (“Tasini”) told Plaintiff no man would want to touch her once she is a single mom. When Plaintiff gained weight, Tasini started mocking her appearance, saying in front of colleagues “’Look at you! You have a pregnant belly, and a pregnant ass!’” Tasini repeatedly told Plaintiff to get a different job because she would not be able to perform her duties as Director once her baby was born. (¶22.)

Bassett and Tasini worked to undermine Plaintiff with Greg Chanis (“Chanis), asserting that Plaintiff would not be able to return to work after only 12 weeks, questioning her ability to work as Director once she was a new mother, and criticizing how Plaintiff ran the department. (¶23.) Three weeks before Plaintiff returned from leave, Bassett sent a memo to Chanis, which he forwarded to Plaintiff, in which she criticized Plaintiff for her management and for having “minimal ‘availability and attention’ due, in part, to her pregnancy and maternity leave.” (¶31.)

After Plaintiff returned from leave, Bassett ignored Plaintiff, shook her head disgustedly when Plaintiff tried to engage with her, criticized Plaintiff in front of her peers, and accused Plaintiff of failing to perform her duties. (¶33.) Evaluating the “’totality of the circumstances’” (see Bailey v. San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 628), the Court finds that a reasonable trier of fact could find that Plaintiff was subjected to a hostile work environment.

With respect to the alleged criticism of Plaintiff’s work, Tiburon argues that such allegations cannot support the cause of action because they relate to her work performance. Tiburon cites Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390. The argument lacks merit in that neither Bassett nor Tasini were engaged in personnel management. They were not Plaintiff’s supervisor or in a position to take “commonly necessary personnel management actions” as to Plaintiff.

The matters outlined above are at least connected to Plaintiff’s pregnancy and maternity leave. Even if there is no clear connection to other protected categories, a demurrer does not lie to part of a cause of action.

2) Uncertainty: Tiburon raises the same argument as it did in connection with the first cause of action. For the same reason, the argument fails. Overruled.

3. Third Cause of Action – Failure to Prevent Discrimination and Harassment

Tiburon argues that this cause of action fails to state sufficient facts because the first and second causes of action fails. The Court has found those causes of action to be sufficient.

4. Fourth Cause of Action – Failure to Engage in the Interactive Process

Tiburon argues that Plaintiff “fails to plead facts to show that Tiburon failed to meet with [her] to engage in an interactive process and fails to state any facts regarding any reasonable accommodations that Tiburon could have provided in the interactive process but were not provided... In fact, [Plaintiff] herself pleads that Tiburon did engage in an interactive process with her and that she was provided leave on multiple occasions.”

The Court finds that Plaintiff’s allegations are sufficient. Plaintiff alleges that her doctor stated in the questionnaire sent to him that Plaintiff would be able to return to work by April 15. (¶47.) In January, when Muchmore urged Plaintiff to consider resigning from her position, Plaintiff told Muchmore she believed she would be able to return to her position at the end of her medical leave and suggested an accommodation of temporarily working either part-time in the office or full-time remotely. (¶¶48-49.)

Muchmore refused to discuss the possibility of Plaintiff returning to her position or any accommodation that would allow her to do so. (¶40.) On February 12, Muchmore told Plaintiff her bonding leave had expired, and Tiburon had decided to separate Plaintiff from her employment. Muchmore refused to discuss any of the accommodations Plaintiff requested that would have allowed her to return to her position. (¶51.) On February 26, Muchmore sent Plaintiff a letter indicating the accommodation process was over. (¶55.)

Thus, while Plaintiff was initially allowed to take a mental health leave, it was cut short even though both she and her doctor indicated she would be able to return to work by April 15. She requested that she be allowed to return part-time in the office or full-time remotely on a temporary basis.

It cannot be determined from the face of the complaint that Tiburon could not accommodate her leave until April 15 or allow her to return part-time or work remotely on a temporary basis. While Tiburon may have engaged in the interactive process in good faith up to a point, it cannot be determined from the face of the complaint that there was not a later breakdown in that process. “...[T]he fact that an employer took some steps to work with an employee to identify reasonable accommodations does not absolve the employer of liability under [Government Code] section 12940(n).

If the employer is responsible for a later breakdown in the process, it may be held liable.” (Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 985, citations omitted.)

Overruled.

5. Fifth Cause of Action – Failure to Accommodate Pregnancy

Section 12940, subdivision (m)(1) makes it an unlawful employment practice “[f]or an employer...to fail to make reasonable accommodation for the known physical or mental disability of an...employee. ...” “There are three elements to a failure to accommodate action: ‘(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.’ ...” (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.) The Court agrees with Tiburon that Plaintiff has not alleged facts showing that Tiburon failed to accommodate her pregnancy. Her allegations show that she went on maternity leave on January 25 and returned in May. (¶¶ 30, 33.)

In its opposition, Plaintiff argues:

As detailed in the Complaint, [Plaintiff] was pregnant, gave birth, and suffered a mental health crisis for which she was placed on medical leave by her doctor in September 2023. In December 2024, [Plaintiff] requested accommodations in the form of extended leave through April 15, 2024, and returning to work on either a part-time basis or full-time working from home. ...

(Citation to complaint omitted.) Her mental health disability is not a pregnancy disability.

Section 12945, subdivision (a)(3)(A), makes it an unlawful employment practice “[f]or an employer to refuse to provide reasonable accommodation for an employee for a condition related to pregnancy, childbirth, or a related medical condition, if the employee so requests, with the advice of the employee’s health care provider.” “[A] cause of action under [that] section...requires proof that: (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff’s employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job. ...” (Lopez v. La Casa de Las Madres (2023) 89 Cal.App.5th 365, 370-371.) “A ‘condition related to pregnancy, childbirth, or a related medical condition,’ as

set forth in Government Code section 12945, means a physical or mental condition intrinsic to pregnancy or childbirth that includes, but is not limited to, lactation. ...” (2 C.C.R. § 11035(d).) Plaintiff has offered no facts to show that her mental health disability was “intrinsic to pregnancy or childbirth.”

Sustained with leave to amend.

6. Sixth Cause of Action – Failure to Accommodate Disability

The Court finds that Plaintiff’s allegations are sufficient. As discussed in connection with the fourth cause of action, Plaintiff went on leave after suffering a mental health crisis. Plaintiff requested leave through April 15 and both she and her doctor said she would be able to return to work at that point. She suggested that she be able to work part-time in the office or full-time remotely. Tiburon refused.

It cannot be determined from the face of the complaint that Tiburon could not have accommodated her. Overruled.

7. Seventh and Eleventh Cause of Action – Interference With Right to Take Pregnancy Leave and Retaliation for Requesting or Using Maternity Leave

It is an unlawful employment practice “[f]or an employer to refuse to allow an employee disabled by pregnancy, childbirth, or a related medical condition to take leave for a reasonable period of time not to exceed four months and thereafter return to work...” (§ 12945, subd. (a)(1).) It is also an unlawful employment practice “[f]or an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise” the right to take the leave set forth in subdivision (a)(1). (§ 12945, subd. (a)(4).) Tiburon argues that Plaintiff fails to state facts showing that Tiburon interfered with her right to leave for a disability related to pregnancy and fails to state facts to show that Tiburon retaliated against Creekmore for requesting or using leave for a disability related to pregnancy.”

With respect to interference, Plaintiff first points to her allegation that she delayed the start of her maternity leave by one week. She specifically alleges:

[Plaintiff’s] maternity leave was scheduled to begin on January 18, 2023. Despite knowing the emotional and physiological distress she was suffering as a result of the toxic work environment she was being subjected to, Mr. Chanis urged [Plaintiff] to delay her leave. As a result of Mr. Chanis’ pressure, [Plaintiff] delayed her maternity leave by one (1) week.

(¶28.) She also points to her allegations that Tiburon, via Chanis, “allow[ed] her to be subjected to ongoing harassment for her planned maternity leave.” While the Court fails to see how the alleged harassment “interfered” with her leave, it finds that her allegation regarding delay is marginally sufficient.

Tiburon argues that “Plaintiff’s claim that Tiburon ‘delayed’ her leave for one week is belied that Plaintiff’s admission that Tiburon later extended her leave multiple times...” Tiburon points to paragraph 44, where Plaintiff alleges that she went on leave after suffering an acute mental

health crisis. This was not an extension of her maternity leave. As for additional maternity leave, Plaintiff alleges that she planned to work three weeks and then take one week off and, rather than agree to the one week, Chanis made Plaintiff attend meetings with a facilitator and Bassett. She also alleges that she requested to take her remaining baby-bonding leave over three intermittent periods, but Chanis initially did not respond and then refused to discuss it. (¶¶ 37, 38, 42, 43.) From these allegations, it cannot be determined from the fact of the complaint that Plaintiff received additional maternity leave.

With respect to retaliation, Plaintiff alleges that Chanis refused to do anything about the harassment by Basset and Tasini, which was based upon her pregnancy and planned leave of absence. She further alleges that Chanis did not approve her annual merit salary increase in March “because she was on maternity leave.” While Plaintiff was still on leave, Chanis approved of Basset’s criticism of Plaintiff for having minimal availability and attention due in part to her pregnancy and maternity leave.

And after her return, when Plaintiff asked for her intermittent one week off, Chanis angrily said the “’honeymoon period better be over soon.’” In reply, Tiburon argues that the denial of the salary increase was not an adverse employment action. Even if it is not, the Court finds that the alleged series of actions is sufficient to show an adverse employment action. In Light v. Department of Paks & Recreation (2017) 14 Cal.App.5th 75, 92, the Court of Appeal wrote:

“’A change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient.’ ‘”Workplaces are rarely idyllic retreats, and the fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.”’” For example, “’a mere oral or written criticism of an employee...does not meet the definition of an adverse employment action under the FEHA.’” Similarly, “mere ostracism in the workplace is insufficient to establish an adverse employment decision. However, ‘”workplace harassment, if sufficiently severe or pervasive, may in and of itself constitute an adverse employment action sufficient to satisfy the second prong of the prima facie case for...retaliation cases.”’”

When a plaintiff alleges a series of actions that comprise a course of conduct, we need not examine each individually. Instead, we consider the totality of the circumstances to determine whether the plaintiff has suffered an adverse employment action. “There is no requirement that an employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Enforcing a requirement that each act separately constitute an adverse employment action would subvert the purpose and intent of the statute.

(Citations and brackets omitted.)

A reasonable trier of fact could find that the totality of circumstances constituted retaliation. Overruled.

8. Eighth and Twelfth Causes of Action – Interference With Right to Take Medical Leave and Retaliation for Requesting or Using Medical Leave

“... A CFRA interference claim ‘consists of the following elements: 1) the employee’s entitlement to CFRA leave rights; and (2) the employer’s interference with or denial of those

rights.’” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 250.) “The elements of a cause of action for retaliation in violation of CFRA are: ‘”(1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, or suspension, because of her exercise of her right to CFRA leave.”’ ...” (Id. at 248.)

Among other reasons, an employee is entitled to a leave of absence under the CFRA because of the birth of a child (§12945.2, subd. (b)(5)(A)) and “because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.” (§ 12945.2, subd. (b)(5)(C).) “’Serious health condition’ means an illness, injury..., impairment, or physical or mental condition of the employee...that involves either inpatient care or continuing treatment, including, but not limited to, treatment for substance abuse.” (2 CCR § 11087(v).)

After pointing out that Plaintiff took her maternity leave, Tiburon argues that Plaintiff “has not pleaded facts to show that she was eligible for more CFRA leave, she has not pleaded facts to show that Tiburon interfered with her right to take CFRA leave she was eligible for, she has failed to plead facts to show she had a disability that would make her eligible for more CFRA leave, and failed to state facts to show that Tiburon filed a disability retirement application for [her] because she exercised her right to CFRA leave. ...”

As to the interference cause of action, Plaintiff argues that [a]mong the ways in which [Tiburon] interfered with [Plaintiff’s] right to CFRA leave were refusing her request to take intermittent leave in June 2023 (Compl. ¶ 38), ignoring her request for taking intermittent leave in August 2023 (Compl. ¶ 42, 43) and ignoring her requests for assistance and communications about her medical conditions while she was on disability leave (Compl. ¶ 45, 54).” The first two allegations pointed to by Plaintiff indicate interference with leave related to the birth of her child.

As to the retaliation cause of action, Plaintiff argues that Tiburon “retaliated against [Plaintiff] for requesting or using her CFRA leave by threatening her employment when she requested intermittent leave in June 2023 (Compl. ¶ 37), by forcing her into a hostile third-party meeting at which she continued to be verbally abused and harassed when she requested intermittent leave in June 2023 (¶ 38), and by making the decision to terminate Ms. Creekmore from her employment only one (1) month after Ms. Creekmore requested an extension of her leave (Compl. ¶¶ 47, 51).”

At least as to the third matter, the Court finds Plaintiff’s allegations to be sufficient. Plaintiff was on leave for a mental health crisis and on January 12 she submitted her doctor’s questionnaire indicating that she would be able to return to work on April 15, but Tiburon decided by February 12 that it was going to terminate her. The trier of fact could find that this was retaliation for taking the leave. Overruled.

9. Ninth Cause of Action – Retaliation for Opposing Discrimination or Harassment

“... ‘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.’ ...” (Wawrzenski, supra, 106 Cal.App.5th at 699, brackets omitted.) Tiburon argues that Plaintiff has not pleaded facts showing that Tiburon took any adverse employment action against her for complaining of harassment/discrimination. The Court agrees. Plaintiff points to the same matters she raised in connection with the twelfth cause of action.

The Court finds that the first two matters do not constitute an adverse employment action, either individually or collectively. Chanis mentioned once that Plaintiff was an at-will employee and she some number of “meetings” with a facilitator and Bassett. With respect to her termination, Plaintiff’s last complaint about harassment/discrimination was no later than mid-August 2023. (See ¶¶42-43.) Tiburon notified her in February 2024 that it had decided to separate her from employment. There is no apparent connection between the decision and her complaints.

While “...’[t]he causal link may be established by an inference derived from circumstantial evidence “such as...the proximity in time between the protected action and allegedly retaliatory employment decision”’” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590. 615), there is a significant gap between Plaintiff’s complaints and the decision to terminate her.

Sustained with leave to amend.

10. Tenth Cause of Action – Retaliation for Requesting an Accommodation

Tiburon argues that Plaintiff has not pleaded facts showing that Tiburon took any adverse employment against her for requesting an accommodation. Plaintiff alleges that in late January Plaintiff proposed working temporarily either parttime in the office or full-time remotely, Muchmore refused to discuss this possibility, and then told Plaintiff on February 12 that Tiburon had decided to separate her from employment.

A reasonable trier of fact could find that the termination was retaliation for asking for an accommodation. Overruled.

11. Injunctive Relief

Tiburon argues that Plaintiff has not pleaded facts sufficient to state any claim for injunctive relief. As noted earlier, “a demurrer cannot rightfully be sustained...to a particular type of damage or remedy.” (Kong, supra, 108 Cal.App.4th at 1047.). Overruled.

IV. MTC’s Demurrer

MTC’s demurrer is sustained with leave to amend on the ground that Plaintiff fails to allege facts sufficient to show that MTC was her employer. Even if Plaintiff had alleged sufficient facts showing that MTC was her employer, the Court finds that the eighth, ninth, and eleventh causes of action are not adequately pled.

A. MTC Not Plaintiff’s Employer

Plaintiff argues that MTC was Plaintiff’s employer under section 12926, subdivision (d), and was Plaintiff’s “joint” or “dual” employer.

1) Section 12926: Subdivision (d) of this section provides that “[e]mployer’ includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly...” In McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301-302, the Court explained:

... An assessment of whether such an employment relationship exists requires a consideration of the totality of the circumstances. Factors to be considered are the payment of salary or other benefits, the ownership of the equipment used by the employee, the location where the relevant work is performed, the responsibility of the employer to train the employee, the authority to promote or discharge the employee, and the power to determine the schedule, assignment, and amount of compensation earned by the employee.

Although there is “’no magic formula’” and no one dispositive factor, the most important consideration is the right of the employer “’to control the means and manner of the workers’ performance.’” That control must be significant to hold the alleged employer responsible, especially when the conduct underlying the claim was committed indirectly, by an immediate employer other than the defendant.

(Citations omitted.)

Plaintiff alleges that MTC was hired “to provide management and oversight of Defendant TIBURON’s human resources functions. As part of the agreement, Defendant MTC was given decision-making authority over Defendant TIBURON’s personnel matters, including employee requests for accommodation, disability determinations, medical and other types of employee leave, personnel development, and employment termination.” (¶29.) Plaintiff argues in her opposition:

...[W]hile acting on behalf of Tiburon, MTC’s principal ignored communications from [Plaintiff] about her medical leave..., interfered with [Plaintiff’s] ability to receive employment benefits..., determined whether or not to grant [Plaintiff’s] request for leave.., established the terms of Tiburon’s interactive process with [Plaintiff]..., engaged in a farcical interactive process with [Plaintiff] on behalf of Tiburon..., improperly abandoned the interactive process on behalf of Tiburon..., and informed [Plaintiff] that Tiburon “needed to move on” from its employment of [Plaintiff]...

In looking at the factors set forth in McCoy, the only one which Plaintiff has arguably alleged is that MTC had the authority to terminate Plaintiff. There are no allegations that MTC paid Plaintiff’s salary or benefits, was responsible for training Plaintiff, had the power to determine Plaintiff’s schedule, assignment and compensation, and, most importantly, had the right to control the means and manner of Plaintiff’s performance.

As to Plaintiff’s claim that MTC determined whether or not to grant her request for leave, the allegations simply show that Muchmore requested more information from Plaintiff’s doctor than just a note. This, along with the other things Plaintiff points to (i.e., establishing the terms of Tiburon’s interactive process and engaging in it) are normal HR matters. In fact, Plaintiff’s own argument shows that it was Tiburon’s process. As for Plaintiff’s termination, even if MTC and not Tiburon, made the decision to separate Plaintiff from her employment, this one matter alone is not sufficient to find that MTC was Plaintiff’s employer.

2) “Dual” or “Joint” Employer: “’If one employer (the general employer) sends an employee to work for another party (the special employer) and both have the right to control the employee’s activities, a dual employment exists’ ...” (Travelers Property Casualty Co. of America v. Workers’ Comp. Appeals Bd. (2019) 40 Cal.App.5th 728, 731, fn. 1.) “The key to the existence of a special employment relationship is control. ‘Where the servants of two employers are jointly engaged in a project of mutual interest, each employee ordinarily remains the servant of his own master and does not thereby become the special employee of the other.’ It is only where some measure of control over the employee is relinquished by the employee’s general employer to another entity that the other entity may become the employee’s special employer. ‘In determining whether a special employment relationship exists, the primary consideration is whether the special employer has the right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not...’” (Brassinga v.

City of Mountain View (1998) 66 Cal.App.4th 195, 215-216, citation and brackets omitted.) In Vernon v. State of California (2004) 116 Cal.App.4th 114, the Court of Appeal addressed the joint employer issue in the context of the FEHA definition of “employer.” It wrote at pages 124-126:

... The common and prevailing principle espoused in all of these tests directs us to consider the “totality of circumstances” that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties. “There is no magic formula for determining whether an organization is a joint employer. Rather, the court must analyze ‘myriad facts surrounding the employment relationship in question. ‘ No one factor is decisive.” “The precise contours of an employment relationship can only be established by a careful factual inquiry.”

Factors to be taken into account in assessing the relationship of the parties include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant’s discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant’s regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff’s employment. “’Generally, ...the individual factors cannot be applied mechanically as separate tests; they are intertwined, and their weight depends often on particular combination.’”

“Of these factors, the extent of the defendant’s right to control the means and manner of the workers’ performance is the most important. ...

(Citations and brackets omitted.)

As already discussed, Plaintiff alleges no facts to show that MTC had any right to control the means and manner of her work. In looking at the additional factors set forth in Vernon, Plaintiff’s work is not part of MTC’s regular business operations.

Again, the only one factor which could support Plaintiff’s position is the allegation that MTC had the power to terminate her. This one matter alone is not sufficient. Sustained with leave to amend.

B. Uncertainty

MTC argues that all the causes of action are uncertain because each is asserted collectively against Defendants. MTC also raises the same uncertainty argument as to the first cause of action as did Tiburon. The complaint is not so incomprehensible that MTC cannot reasonably respond.

C. First Cause of Action - Discrimination

The Court concluded in connection with Tiburon’s demurrer that Plaintiff states facts sufficient to constitute a cause of action. If Plaintiff can ultimately plead that MTC was her employer and had authority to terminate her, the cause of action will be sufficient as against MTC (although Plaintiff alleges that Muchmore told her that Tiburon determined to separate her from employment and that Tiburon submitted the disability retirement application).

D. Fourth and Sixth Causes of Action – Failure to Engage in Interactive Process and Failure to Accommodate Disability

MTC raises the same argument as did Tiburon. The Court has determined that Plaintiff has stated sufficient facts (assuming she can plead that MTC was her employer).

E. Eighth Cause of Action – Interference With Right to Take Medical Leave

Although the Court found that the cause of action is sufficiently stated against Tiburon, such finding was based upon allegations that do not involve MTC. Plaintiff points to her allegations that, while on mental health leave, Muchmore “ignored communications from [Plaintiff] about her leave[and] interfered with [Plaintiff’s] ability to receive benefits...” (¶45.) The Court finds that these allegations lack sufficient specificity to show how this conduct interfered with Plaintiff’s right to take leave.

F. Ninth Cause of Action – Retaliation for Opposing Discrimination and Harassment

Plaintiff fails to allege facts sufficient to constitute a cause of action as shown in connection with Tiburon’s demurrer.

G. Tenth and Twelfth Causes of Action – Retaliation for Requesting an Accommodation and for Requesting or Using Medical Leave

In connection with the demurrer of Tiburon, the Court found that Plaintiff has alleged sufficient facts, and the finding was based upon the conduct of Muchmore. Therefore the causes of action will be sufficient against MTC if Plaintiff is able to amend to allege that MTC was her employer.

H. Eleventh Cause of Action – Retaliating for Requesting or Using Pregnancy Leave

The Court’s finding that Plaintiff stated facts sufficient to constitute a cause of action against Tiburon was based upon Tiburon’s alleged conduct. Plaintiff argues that the cause of action is sufficient against MTC (assuming it was her employer) because, after she requested and used pregnancy leave, “MTC ignor[ed] her requests for assistance with her medical leave and benefits..., den[ied] her requests for reasonable accommodation..., [refus[ed] to engage in a good-faith interactive process..., and terminat[ed] [Plaintiff] through forced retirement...”

The allegation that MTC ignored Plaintiff’s request for assistance with her leave and benefits is not sufficiently specific to show that this, either alone or in combination with the other alleged conduct, constituted an adverse employment action. As to the other conduct, Plaintiff’s allegations show that she returned from maternity leave in May 2023. (¶33.)

The remaining conduct apparently did not occur until early 2024, and MTC told Plaintiff about the decision to separate her on February 12, 2024. Again, while “...’[t]he causal link may be established by an inference derived from circumstantial evidence “such as...the proximity in time between the protected action and allegedly retaliatory employment decision”’” (Fisher, supra, 214 Cal.App.3d at 615), this case involves a significant gap in time between Plaintiff’s maternity leave and the conduct of MTC.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444- 7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).