Opinion
A142456
01-10-2017
GWENDOLYN BIKIS, Plaintiff and Appellant, v. OAKLAND UNIFIED SCHOOL DISTRICT, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG11606645)
Plaintiff Gwendolyn Bikis (Bikis), an adult education instructor, sued the Oakland Unified School District (district) and Brigitte Marshall (Marshall), the director of the district's Adult Education Program (collectively, defendants) in an employment action. In her Fourth Amended Complaint, Bikis alleged 11 causes of action, including claims for failure to accommodate her disability, retaliation, and harassment in violation of the Fair Employment and Housing Act. The superior court sustained defendants' demurrer without leave to amend, and Bikis appealed. Bikis's complaint is a rambling and repetitive account of her employment and her grievances against the district and Marshall, but amidst a host of irrelevancies and conclusory statements, Bikis manages to allege facts that state several claims. We conclude that although the superior court properly sustained the demurrer without leave to amend as to some of her causes of action, it should have overruled the demurrer as to others. Accordingly, we will affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
A. Allegations in the Fourth Amended Complaint
Starting in September 1993, Bikis was employed as an adult education instructor by the district. "[C]redentialed and qualified to teach adult basic education, secondary education, social sciences and office occupation," she taught classes including English as a second language, vocational literacy, adult basic education, senior citizen computer classes, and GED classes. She "consistently received competent performance evaluations."
Bikis "has an impairment that substantially limits one or more major life activities, has a record of such an impairment and is regarded by defendants as having such an impairment." Bikis's "disabilities include, but are not limited to cervical and thoracic degenerative disk disease, migraines, neck and shoulder pain which are exacerbated by constant bending while teaching computer classes more than three hours per day, five days per week [without] 'ergonomic' accommodations such as computer chairs and proper room lighting. All of which have been made known to the [district] along with her need for a reasonable accommodation." Bikis suggests that some or all of these disabilities arose from an incident in January 1993, before she was hired by the district, when she "suffered disability as a result of being shot in the head during a robbery." She subsequently underwent months of medical treatment.
In 2004, Bikis filed a union grievance to enforce her right to tenure benefits. Marshall became the director of the district's adult education program in 2005. Sometime after that, Bikis was awarded tenure benefits and back pay, apparently over Marshall's objection. Marshall discouraged Bikis from claiming the back pay, saying, "the amount is due to you but you don't have to ask for it." Marshall disliked Bikis "because she sought to enforce her rights and because of her sexual orientation."
Bikis does not allege that she was denied tenure benefits because of disability or other protected characteristic.
Bikis alleges that starting in 2005, Marshall reorganized the adult education program to "rid the [d]istrict of persons considered trouble makers, including those who exercised their rights, those with disabilities, with certain sexual orientation, those who complained of unfair and unlawful treatment, particularly those who had contract seniority rights and tenure rights that blocked their layoff." Bikis claims that Marshall denied long-time employees their rights and benefits in order to force them to resign, or she fires them based on bogus charges, and gave preferential treatment in assigning class schedules to people "with less seniority whom she liked based on their race, gender, lack of complaints and sexual orientation."
In the fall of 2006, Bikis's "medical conditions began to worsen and she experienced migraines, muscle spasms and other complications," which she attributed in part to " 'poor ergonomic' conditions in her class room including poor lighting, poor air circulation, [and] inadequate chairs in the computer lab." Bikis and others petitioned about the conditions, but to no avail.
In November 2006, Bikis requested a "partial temporary leave beginning January of 2007, because her migraines, neck and back pain worsened and she required a short medical leave to rest." Bikis claims she provided "medical documentation explaining she [wa]s experiencing muscle pain, neck and shoulder pain, bone-spurring, migraine headaches and sleep disturbances." Marshall denied Bikis's request for leave. Bikis continued working, and her symptoms got worse.
In March 2007, Bikis requested partial medical leave for the 2007-2008 school year, asking for "reduced computer classes of no more than three hours per day." Other classes were available that Bikis was qualified to teach, including a GED class. Then, even though Marshall knew that Bikis's "condition worsened with teaching computer classes," she "re-assigned [Bikis] to a class schedule that included four (4) hours of computer class for school year 2007-2008, more than previously and contrary to [Bikis's] request for accommodation."
In May 2007, Bikis met with her immediate supervisor, Ana Solomon, and "discussed [Bikis's] need for classes other than computer classes." Solomon told Bikis to complete forms for reasonable accommodation, and Bikis then gave Solomon completed forms "with adequate medical documentation." Solomon told Bikis that she had filed the forms with human resources.
When Bikis inquired about the request for accommodation in January 2010, she was told that the district did not have her request. She concludes that the papers were "removed without explanation" or were never filed.
Bikis resigned from her contract tenure status in the summer of 2007, because Marshall was requiring her to teach four hours a day of computer classes for school year 2007-2008, and Bikis could not retain her status unless she taught the assigned classes. She was rehired by the district as an hourly employee in August 2007. She was classified as a substitute instructor for "any and all long term substitute requests for instructors," and was assigned to teach computer classes.
In a footnote to her opening brief on appeal, Bikis asks us to "take judicial notice of the Economic Recession of 2007 and its overall effects and implications for California's economy." This request is improper in form and substance, and we deny it. (Ct. App., First Dist., Local Rules of Ct., rule 9(a).)
After being rehired, Bikis was asked to teach in a GED program and in the ASSETS Senior Citizen Computer Program starting in January 2008. Her teaching materials for the ASSETS program were destroyed, allegedly at Marshall's direction, just before her teaching assignment was to begin in January 2008. It is not clear from the complaint whether Bikis taught in either program in the early part of 2008, but she taught in both during the 2008-2009 academic year. These courses "were not as harsh on [her] condition and required only three hours a day of computer class," though she was "still suffering from the strain of glaring at [sic] computer screens."
The ASSETS program "help[s] to train and prepare mature adults for entry or re-entry into the competitive labor market." (<http://www2.oaklandnet.com/government/o/DHS/s/AAS/OAK022069 [as of Jan. 4, 2017].)
In July 2009, Bikis "still need[ed] accommodation because of the pain and strain of teaching computer classes in poor ergonomic classrooms," yet Marshall assigned her to "an increased Computer ASSETS class." Shortly thereafter, Bikis's ASSETS teaching materials were "destroyed again," allegedly by site administrators acting under Marshall's orders, and Bikis was "unable to teach the class because of the loss of the materials and increased pain."
In August 2009, Marshall "again" assigned Bikis "to a heavier computer class schedule than she [was] able to perform adequately because of the continued pain and the poor ergonomic classroom conditions." There were positions available in other areas that Bikis could teach, but Bikis was not assigned to any of them "because she [was] hourly."
In mid-December 2009, Bikis "contact[ed] risk management to verify the processing and status of her pending request for reasonable accommodation," and to inform risk management that because of continued pain she had to revise her request to allow no more than two hours of computer classes. The next day, her teaching materials were removed from her classroom "by site administrators," an event "orchestrated" by Marshall and others; some of the materials were eventually retrieved from a recycling bin. The same day that the teaching materials were removed, defendants refused to give her a raise in pay, even though she was due for one, and Bikis was called to the front office, where in front of members of the public and school personnel, the district had a process server serve Bikis with a summons and complaint for alleged overpayment of wages. The civil action against her was dismissed after Bikis showed the district's counsel that she did not owe the money.
The "pending request" Bikis mentions in her complaint appears to be her May 2007 request for accommodation.
In January 2010, Bikis asked once again to modify her computer classes to two hours per day. The next day, Bikis's supervisor, Garlin Cephas, came to Bikis's classroom, "interrupted her teaching and informed her she will no longer be teaching the next City of Oakland ASSETS computer class effective February 4, 2010." Cephas told her that she was being replaced by teacher Beausang, characterized by Bikis as "a caucasian heterosexual male, who was not known as a 'trouble maker.' " Also in January "and thereafter," Bikis was "excluded from" professional training.
In February 2010, Bikis filed a complaint with the Department of Fair Employment and Housing (DFEH). She alleges that she "complain[ed] that she had been discriminated against on the basis of her disability, sexual orientation, and in retaliation for complaining and protesting unlawful practices. She complained that [the district] repeatedly mishandled her request for accommodation and request for partial medical leave. She alleged denial of equal pay, denial of promotion, denial of accommodation, denial of medical leave and unfair lay off. She complained about a long standing pattern of harassment including having her teaching materials destroyed on three separate occasions. She complained that representatives of the [district] made negative remarks to two agencies where she worked. She complained about being served an unfounded judicial summons and complaint."
In her Third Amended Complaint, Bikis identifies this DFEH filing as complaint M55501 B6735.
In June 2010, Bikis was laid off, and a few days later, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) and the DFEH. Bikis does not allege further details about this filing.
In August 2010, Bikis filed an internal grievance against Marshall "for replacing her [with an] uncredential[ed] instructor for the ASSETS class," and complaining that "Marshall is 'mis-placing teachers' in order to eliminate other teachers including [Bikis] and as retaliation." She alleges that in addition to complaining of retaliation, she complained of harassment, discrimination and wrongful denial of benefits. Also in August 2010, Bikis was not rehired for the 2010-2011 school year.
In her opening brief on appeal, Bikis explains that "mis-placing teachers" means "assigning . . . teachers to teach courses for which they are not qualified."
In October 2010, Bikis filed a complaint with EEOC and the DFEH "about her wrongful discharge, unfair treatment, denial of medical leave, accommodation, denial of promotion, retaliation, harassment and disability discrimination." Bikis does not allege further details about this complaint.
On November 23, 2010, she filed complaint 555-2010-01655 with the EEOC and the DFEH, alleging discrimination based on retaliation and disability, for which she received a right-to-sue letter on December 1, 2010. The trial court granted Bikis's and defendants' separate requests for judicial notice of the November 2010 DFEH complaint.
Bikis alleges that she filed a complaint with the EEOC and the DFEH in February 2011, but she says nothing about the substance of the complaint. She also alleges that on December 1, 2011, a right-to-sue letter was issued on her complaint number E20112 M5605-00, but she does not allege when that complaint was submitted to the DFEH. B. Procedural Posture
On December 1, 2011, Bikis filed her initial complaint in this matter in the superior court, alleging eight causes of action against the district and Marshall. Defendants demurred. Bikis filed an amended complaint the day before the hearing, but apparently the superior court did not receive it. The court sustained the demurrer with leave to amend and instructed Bikis "to follow Defendants' demurrer as a guideline in amending the complaint."
Bikis subsequently refiled the First Amended Complaint (with the same eight causes of action), and later filed Second and Third Amended Complaints (with nine and 11 causes of action, respectively). Defendants responded with further demurrers and motions to strike. The superior court provided additional guidance to Bikis in its orders sustaining the demurrers with leave to amend. In sustaining the demurrer to the First Amended Complaint, the court stated, "Plaintiff is again to follow Defendants' demurrer as a guideline in amending the complaint"; in sustaining the demurrers to the Second and Third Amended Complaints, the court set out the elements that Bikis must plead in any amendment to withstand further demurrer as to her causes of action.
In January 2014, Bikis filed her Fourth Amended Complaint, which included the same 11 causes of action as the Third Amended Complaint: (1) violation of the California Family Rights Act (CFRA, Gov. Code, § 12945.2 et seq.) against the district; (2) retaliation in violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.), against the district; (3) disability discrimination—failure to accommodate in violation of FEHA, against the district; (4) disability discrimination in violation of FEHA, against the district; (5) failure to engage in interactive process in violation of FEHA, against the district; (6) invasion of privacy in violation of article 1, section 1 of the California Constitution, against both defendants; (7) breach of medical confidentiality in violation of the Confidentiality of Medical Information Act (Civ. Code, § 56 et seq.), against both defendants; (8) hostile work environment, against the district; (9) hostile work environment—harassment directed at plaintiff in violation of FEHA, against Marshall; (10) disability discrimination—failure to prevent, investigate and remedy discrimination and harassment in violation of FEHA, against the district; and (11) wrongful termination in violation of public policy, against the district.
Defendants demurred and also filed a motion to strike Bikis's request for punitive damages against Marshall. The trial court published a tentative ruling in advance of the scheduled hearing, sustaining the demurrer as to all 11 causes of action without leave to amend. Bikis did not contest the tentative ruling, and an order was entered sustaining the demurrer and dismissing the complaint. This appeal followed.
The record does not reflect any ruling on the motion to strike, which is not at issue in this appeal.
DISCUSSION
A. Standard of Review
"When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando ).) "We do not, however, assume the truth of contentions, deductions, or conclusions of fact or law." (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
When claims are founded exclusively on statutory provisions that are not codifications of common law, such as Bikis's CFRA and FEHA claims, the plaintiff must specifically plead facts in support of each of the requirements of the statute on which the cause of action is based. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 (Fisher).)
"If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action." (Schifando, supra, 31 Cal.4th at p. 1081.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer." (Quelimane Company v. Stewart Title Guaranty Company (1998) 19 Cal.4th 26, 38 (Quelimane).) A demurrer cannot "be directed to anything except the entire complaint or a count; it will not lie to part of a cause of action or count." (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 957, p. 371.) "If there are sufficient allegations to entitle the plaintiff to relief, other allegations cannot be challenged by general demurrer," even if the complaint includes irrelevant allegations. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2016) ¶ 7:42.2.) "[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike," but not by demurrer. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.)
"As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be." (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) However, " 'where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them[, t]he court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.' [Citation.] The rationale for this rule is obvious. 'A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.' [Citation.] Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is 'not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.' [Citation.]" (Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)
If the court sustains the demurrer without leave to amend and we conclude that the complaint does not state a cause of action, "we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]" (Schifando, supra, 31 Cal.4th at p. 1081.) "If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended." (Hendy v. Losse (1991) 54 Cal.3d 723, 742.) The demonstration "need not be made in the trial court so long as it is made to the reviewing court. [Citations.]" (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) B. Analysis
We address each of Bikis's claims, though not in the order they appear in her complaint. We reorder them to facilitate our discussion of the claims and defendants' grounds for demurrer.
1. CFRA Violation (First Cause of Action)
Bikis claims that the district violated the CFRA by denying her November 2006, and May 2007 requests for medical leave, and her December 2009 and January 2010 requests for a reduced schedule.
Under the CFRA, it is "an unlawful employment practice for any employer . . . to refuse to grant a request by any employee with more than 12 months of service . . . and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave." (Gov. Code, § 12945.2, subd. (a); see also Cal. Code Regs., tit. 2, § 11087, subd. (e) [defining "[e]ligible employee" as an employee "who has actually worked . . . for the employer at least 1,250 hours during the 12-month period immediately prior to the date the CFRA leave is to commence"].) It is also unlawful to retaliate against an employee for exercising her right to CFRA leave. (§ 12945.2, subd. (l).)
All further unspecified statutory references are to the Government Code.
To state a claim for a CFRA violation Bikis must allege that she had at least 1,250 hours of service with the employer during the 12-month period immediately preceding the date on which the leave is to commence. (See Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261-266 (Dudley).) Although Bikis alleges the legal conclusion that she "was qualified for [CFRA] leave based on having completed the sufficient number of instructional days and number of hours worked along with accumulated sick leave earned during the 12 months prior to her request for leave in May, 2007, and in December, 2009 and January, 2010," she does not allege that she had the requisite 1,250 hours of service during the 12-month periods that preceded any requested leave, whether in the period 2006-2007, 2008-2009, or 2009-2010. Because Bikis has not alleged a necessary fact to support her claim of eligibility for CFRA leave, her first cause of action is properly dismissed.
The only statement about hours in the Fourth Amended Complaint is an allegation that by contract the maximum number of instructional hours is 1098, which is less than the required 1,250. In her Third Amended Complaint, Bikis alleged that starting in the 2001-2002 academic year she was assigned 779 hours as a tenured instructor, which would vitiate her claim of eligibility. Bikis argues that it was error for the superior court to take judicial notice of her November 2010 DFEH filing for the truth of its contents, including her statement that she worked fewer than 1,250 hours in the 12 months before requesting leave. In view of Bikis's failure to plead the required 1,250 hours in her Fourth Amended Complaint and in view of the facts pleaded in the Third Amended Complaint, any such error is harmless.
In her opening brief on appeal, Bikis asserts that she can amend her complaint "to allege that plaintiff falls within the category of eligible employees." She relies on Dudley, which held that leave to amend a CFRA claim should be granted when a plaintiff who fails to allege the required 1,250 hours states on appeal that he or she could allege that fact if given an opportunity to amend. (Dudley, supra, 90 Cal.App.4th at pp. 262, 266.) Bikis's reliance on Dudley is misplaced, because Bikis does not claim that she can allege the requisite 1,250 hours of service. Bikis suggests that her contractual entitlement to accumulated sick leave and extended sick leave should be added to instructional hours to meet the requirement of "at least 1,250 hours of service with the employer during the previous 12-month period" (§ 12945.2, subd. (a)), but offers no authority to support this position.
In ruling on defendants' demurrer to the Third Amended Complaint, the court allowed Bikis to amend her CFRA cause of action to allege that she had the requisite 1,250 hours of service in the 12 months before leave was requested, or, if she claimed she had a statutory claim because of the district's policies, to plead the basis for this assertion. The court stated that if defendants demurred, Bikis would be required to support her position by citation to authority which would allow her to maintain a CFRA cause of action without the requisite number of hours. Bikis has cited no such authority.
In these circumstances, defendants' demurrer to Bikis's first cause of action for violation of the CFRA, is properly sustained without leave to amend.
2. Retaliation in Violation of FEHA (Second Cause of Action)
Bikis claims the district retaliated against her in violation of FEHA, which makes it unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (§ 12940, subd. (h); see Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1035 (Yanowitz).)
To plead a claim of retaliation, Bikis must allege facts to show she engaged in a "protected activity," the district subjected her to an adverse employment action, and a causal link existed between the protected activity and the district's action. (See Yanowitz, supra, 36 Cal.4th at p. 1042 [stating the elements of a prima facie case of retaliation under FEHA].) Protected activity includes complaining of or opposing conduct that the employee reasonably believes to be discriminatory, even if a court later determines the conduct was not actually prohibited by FEHA. (Id. at p. 1043.) For the purposes of a retaliation claim, an adverse employment action is an action "reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement . . . . [A] mere offensive utterance or even a pattern of social slights by either the employer or co-employees cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment for purposes of section 12940(a) (or give rise to a claim under section 12940(h))." (Id. at p. 1054.)
Bikis alleges that at various times in the period 2004 through 2010 she engaged in forms of protected activity and was retaliated against as a result. The superior court ruled that "[a]fter an opportunity to amend, it is clear that plaintiff has not and cannot allege facts showing that she engaged in a protected activity and that there is a causal connection between the purported protected activity and the alleged adverse employment action. In other words, making a request for medical leave or accommodations does not constitute protected activity for the purposes of a retaliation cause of action." Under the applicable law at the time Bikis filed her complaint, making a request or even making repeated requests for medical leave or accommodation does not constitute protected activity for a claim of retaliation under section 12940. (Rope v. Auto-Chlor System of Washington (2013) 220 Cal.App.4th 635, 652, superseded by statute as discussed in Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 245-247.) Defendants argue that the superior court's ruling was correct, and that all of Bikis's alleged protected activity relates to requests for accommodation and leave, rather than to any complaint of discrimination.
In 2015, the Legislature amended section 12940, making it unlawful for an employer to "retaliate or otherwise discriminate against a person for requesting [reasonable] accommodation [for any known physical or mental disability], regardless of whether the request was granted." (§ 12940, subd. (m)(2), added by Stats. 2015, ch. 122, § 2.) Because we will conclude that Bikis has alleged that she engaged in protected activity beyond merely requesting accommodation, we need not reach the question whether the amendment is prospective or retrospective in application.
Bikis's allegations of protected activity and retaliation in the Fourth Amended Complaint are set out in 23 subparagraphs which purportedly identify the "protected activity for which [Bikis] was retaliated against and harassed." Some of the subparagraphs identify alleged protected activity, some identify alleged retaliation, and some appear to identify neither. We begin with Bikis's allegations that she opposed unlawful practices by filing an internal complaint with the district on August 9, 2010, complaining of retaliation and harassment and discrimination, and that the same month the district refused to rehire her.
By alleging that she complained to the district about retaliation, harassment and discrimination, Bikis has alleged that she engaged in protected activity on August 9, 2010. By alleging that the district refused to rehire her, Bikis has alleged an adverse employment action. It is less clear whether Bikis has alleged the necessary causal link between the two. " ' "The causal link may be established by an inference derived from circumstantial evidence, 'such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.' " (Jordan v. Clark (9th Cir. 1988) 847 F.2d 1368, 1376.)' ([Fisher], supra, 214 Cal.App.3d at pp. 614-615.) 'Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.' (Cohen v. Fred Meyer, Inc. (9th Cir. 1982) 686 F.2d 793, 796; Gunther v. Washington County (9th Cir. 1979) 623 F.2d 1303, 1316.)" (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69 (Morgan).) Because Bikis alleges that the August 9, 2010 complaint was filed with the district, we can infer that the district was aware of it. Although Bikis does not allege the date in August 2010 on which the district determined not to rehire her, she pleads the decision not to rehire after she pleads the August 9 complaint as part of a chronological sequence. From this we can infer that the decision followed within no more than three weeks of the complaint, which would constitute close proximity in time and therefore allege the requisite causal link. (Fisher, supra, 214 Cal.App.3d at p. 615 [adverse action must follow " 'within a relatively short time' "].)
We conclude that because Bikis has stated a claim for retaliation as to her August 2010 complaint, the superior court erred in sustaining defendants' demurrer to her second cause of action for retaliation under FEHA. We need not consider whether any of Bikis's other allegations state a cause of action for retaliation. (Quelimane, supra, 19 Cal.4th at p. 38.)
3. Claims Concerning Reasonable Accommodation
FEHA requires employers to make reasonable accommodation for the known physical or mental disability of an employee (§ 12940, subd. (m)(1)), and "to engage in a timely, good faith, interactive process . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition." (§ 12940, subd. (n).) These requirements give rise to independent causes of action. (See Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 243 [subdivisions (m) and (n) identify separate unlawful employment practices].) Bikis alleges both of them in her Fourth Amended Complaint. She alleges that she first requested a reasonable accommodation in November 2006 when she asked for a partial temporary leave. She requested accommodation again in the spring of 2007 by asking for no more than three hours of computer classes per day. Then, in December 2009 she "contacted risk management to verify the processing and status of her pending request for reasonable accommodation and to modify the request" to allow no more than two hours of computer classes and in January 2010 she inquired further as to her request for no more than two hours of computer classes. Bikis alleges that the district never engaged in the interactive process with her, despite her willingness to participate, and she alleges that the district failed to make reasonable accommodation.
a. Failure to Engage in Interactive Process (Fifth Cause of Action)
To state a claim for failure to engage in the interactive process, Bikis must allege she had a disability that was known to the district, she requested a reasonable accommodation for her disability so that she could perform the essential functions of her job, she was willing to participate in an interactive process to determine whether a reasonable accommodation could be made, the district failed to participate in a timely good-faith interactive process with her, and the failure caused her harm. (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 61-62; § 12940, subd. (n); CACI No. 2546.)
Defendants advance several arguments to support their position that Bikis has failed to state a claim. First, defendants argue that Bikis does not allege facts to show that she has a qualifying disability under FEHA, contending that Bikis "has utterly failed to allege what—if any—physical or mental limitation she suffers from which affects her participation in a major life activity, and thus ignores the requirement that she plead facts that evidence the extent of the limitations caused by her purported disability." This argument lacks merit. Bikis alleges she suffered from degenerative disk disease, migraines, muscle pain and sleep disturbances that were aggravated by the district's assigning her to teach more than three hours of computer classes per day and that required rest and accommodation. These allegations suffice to plead a qualifying disability because working is a major life activity under FEHA (§ 12926.1, subd. (c) ["under the law of this state, 'working' is a major life activity, regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments"]; see also Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1024 [chronic back injury that limits work activities qualifies as FEHA disability].)
Second, defendants argue that Bikis does not allege facts to show that she is otherwise qualified for the position she seeks, contending that Bikis "does not allege any specific facts as to whether she was able to perform the essential duties as an Adult Education teacher with or without reasonable accommodation." This argument also lacks merit. Bikis alleges that she was credentialed and certified to teach adult education, that she taught until 2010 when she was laid off, and that she consistently received competent performance evaluations.
Third, defendants argue that Bikis fails to allege that a reasonable accommodation was available. This argument, too, lacks merit. Bikis alleges she could have been accommodated by changing her teaching schedule and assigning her to other classes that were available; by changing the physical environment in which she worked by modifying classroom lighting, air circulation, and seating; or by granting her a medical leave. These may be reasonable accommodations for disability under FEHA. (§ 12926, subd. (p); Cal. Code Regs., tit. 2, § 11068, subds. (b), (c) [identifying potential reasonable accommodations].) Whether they are reasonable in the circumstances is a factual question that is not appropriate for determination on a demurrer. (Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341.)
Finally, defendants argue that Bikis's claim is untimely, because the alleged violations by the district pre-date the limitations period, which began to run in November 2009, a year before Bikis filed her complaint with the DFEH. This argument disregards Bikis's allegations that the district failed to engage in an interactive process after her December 2009 and January 2010 requests for accommodation, which occurred within the ordinary limitations period. Because Bikis has pleaded facts alleging failure to engage in the interactive process within the limitations period, we need not reach her argument that earlier allegations are properly before the court under the continuing violation doctrine. (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 [limitations period for filing a complaint with the DFEH is tolled if an employer repeatedly violates an employee's FEHA rights and "the employer's unlawful actions are (1) sufficiently similar in kind . . . ; (2) have occurred with reasonable frequency; (3) and have not acquired a degree of permanence"].)
Ordinarily, a complaint must be filed with the DFEH within one year of the alleged unlawful practice. (§ 12960, subd. (d).) Once a "right-to-sue" notice has been issued, the aggrieved person has one year to file suit on their statutory claims. (§ 12965, subd. (b); see also Schifando, supra, 31 Cal.4th at pp. 1081-1082.)
We conclude that the superior court erred in sustaining defendants' demurrer to Bikis's fifth cause of action for failure to engage in the interactive process.
b. Failure to Accommodate Disability (Third Cause of Action)
To state a claim for failure to accommodate, Bikis must allege she suffers from a disability covered by FEHA, the district knew of her disability, she can perform the essential functions of her job with reasonable accommodation, the district failed to reasonably accommodate her, and she was harmed as a result. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256 (Jensen); CACI No. 2541.)
Defendants argue that the failure to accommodate claim fails because it is untimely. But Bikis has stated a claim as to the district's alleged failure to accommodate in response to her December 2009 and January 2010 requests for a reduced schedule of computer classes, which occurred within the applicable limitations period. Therefore we conclude that the superior court erred in sustaining defendants' demurrer to Bikis's third cause of action for failure to accommodate.
4. Disability Discrimination (Fourth Cause of Action)
To state a claim for disability discrimination, Bikis must allege that (1) she suffers from a disability, (2) she is otherwise qualified to do her job, and (3) she was subjected to adverse employment action because of her disability. (Deschene v. Pinole Point Steel Co. (1999) 76 Cal.App.4th 33, 44.)
Because we have already concluded that Bikis adequately alleges the first two elements, we consider whether she alleges the third. Bikis's Fourth Amended Complaint essentially claims that every one of the facts she alleges constitute adverse employment action by the district because of her disability. But "our case law makes clear that the FEHA's discrimination provision addresses only explicit changes in the 'terms, conditions, or privileges of employment' (§ 12940, subd. (a)); that is, changes involving some official action taken by the employer. [Citation.] In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action." (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 705 (Roby), citing Reno v. Baird (1998) 18 Cal.4th 640, 645-647.)
Bikis alleges that on December 15, 2009 and on January 20, 2010, she asked that she not be assigned more than two hours of computer classes per day. On December 16, she was denied a raise. On January 21 she was informed that she was being replaced in one of her classes effective February 4. The replacement was "a Caucasian heterosexual male," who, unlike Bikis was not considered a "troublemaker" by the district. In January 2010 "and thereafter" Bikis was excluded from professional training. In May 2010 the district passed her over for assignments that would accommodate her condition, and in June 2010, four months after she filed a claim with the DFEH, the district terminated her employment.
Pointing to Bikis's allegation that she was replaced by a Caucasian heterosexual male and her failure to allege that the replacement was not disabled, defendants argue that Bikis does not allege facts to suggest that she was treated less favorably than a non-disabled person, and on that basis they argue that Bikis has not adequately alleged a discrimination claim. (See Jensen, supra, 85 Cal.App.4th at pp. 254-255 [causal connection established by showing that plaintiff was " 'replaced by a non-disabled person or was treated less favorably than non-disabled employees' "].) But there are other ways to allege the causal element of a discrimination claim. The causal connection between discrimination and an adverse employment action may be established by an inference derived by the close temporal proximity of events. (See Morgan, supra, 88 Cal.App.4th at p. 69; Fisher, supra, 214 Cal.App.3d at pp. 614-615.)
In the portion of her complaint alleging discrimination on the basis of disability, Bikis contends that she was "wrongfully treated differently than nondisabled individuals in that, including but not limited to the following and referenced herein, nondisabled individuals were not harassed, ostracized, scrutinized, ignored, marginalized, demeaned, otherwise wrongfully treated and not denied the right to work without harassment." This conclusory statement does not suffice to allege a causal link between discrimination and disability, and Bikis does not contend otherwise.
At least some of the adverse actions that Bikis alleges closely followed her informing the district of her disability, and it could be inferred from the timing that the adverse actions were taken as a result of animus toward her disability. Therefore, we conclude that the superior court erred in sustaining defendants' demurrer to Bikis's fourth cause of action for disability discrimination.
5. Hostile Work Environment and Harassment Claims Against the District and Marshall (Eighth and Ninth Causes of Action)
In her Third and Fourth Amended Complaints, Bikis styles her eighth cause of action, as to the district, "Hostile Work Environment." She styles her ninth cause of action, as to Marshall, "Hostile Work Environment, Harassment—Conduct Directed at Plaintiff—Individual Defendant (Gov. Code § 12940(j).) The trial court addressed these claims together in its orders, characterizing the causes of action as "hostile work environment harassment."
Bikis alleges that the district and Marshall engaged in harassment that created a hostile work environment for Bikis on account of her disability, and that Marshall in particular created a hostile work environment by harassing her because of her disability.
Under FEHA, it is illegal for an employer to harass an employee on the basis of disability. (§ 12940, subd. (j)(1).) " ' "[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 personal management actions . . . do not come within the meaning of harassment. . . . These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. . . ." ' " (Roby, supra, 47 Cal.4th at p. 707, quoting Reno, supra, 18 Cal.4th at pp. 645-647.) A claim of harassment "focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Roby, supra, 47 Cal.4th at p. 706.) To prevail on a hostile work environment claim, Bikis must show that the harassing conduct was " 'severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees' " because of disability. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 [discussing requirements for FEHA hostile work environment claim].) FEHA does not permit recovery for occasional, isolated, sporadic or trivial harassment. (Ibid.)
Discriminatory acts, though distinct from harassment, could "provide evidentiary support for a harassment claim by establishing discriminatory animus on the part of the manager responsible for the discrimination, thereby permitting the inference that rude comments or behavior by that same manager was similarly motivated by discriminatory animus." (Roby, supra, 47 Cal.4th at p. 709.)
In her Third Amended Complaint, Bikis alleged only conclusory allegations of harassment. In sustaining defendants' demurrer with leave to amend, the trial court instructed Bikis "to plead the harassing conduct forming the basis for her claims and the involved actors." Our review of Bikis's Fourth Amended Complaint shows that she has alleged facts to support her causes of action.
Bikis alleges that on three occasions, in January 2008, July 2009, and December 2009, her teaching materials were destroyed or removed from her classroom at Marshall's instigation. The incidents interfered with her teaching, and Bikis suggests that the incidents amounted to sabotage to interfere with her teaching the ASSETS classes that she believed were appropriate for her in light of her disability. The third incident occurred the day after Bikis inquired about accommodation for her disability. The same day as the third incident, Marshall and the district arranged for Bikis to be removed from her classroom and publicly served with a summons and complaint for overpayment of wages in a way that Bikis found humiliating, embarrassing and anxiety-provoking. In January 2010, the day after Bikis inquired about accommodation for her disability, her supervisor interrupted a class Bikis was teaching to give her information about teaching assignments, rather than scheduling a meeting with Bikis outside of class time.
In the context of the other allegations in Bikis's complaint and in view of the proximity in time of the allegedly harassing conduct to Bikis's assertion of being disabled, we conclude that these allegations suffice to state a cause of action for harassment on the basis of disability, against the district and against Marshall. The superior court erred in sustaining defendants' demurrer to Bikis's eighth and ninth causes of action for harassment on the basis of disability.
6. Failure to Prevent Discrimination and Harassment (Tenth Cause of Action)
Bikis alleges that the district violated FEHA by "fail[ing] to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (§ 12940, subd. (k).) Because Bikis has alleged claims for disability discrimination and for harassment by the district and her supervisor, she has stated a claim against the district for violation of section 12940, subdivision (k). Accordingly, the superior court erred in sustaining defendants' demurrer to Bikis's tenth cause of action for failure to prevent discrimination and harassment.
7. Wrongful Termination Claim (Eleventh Cause of Action)
Bikis claims that the district wrongfully terminated her by failing to accommodate her disability and forcing her to resign her contract tenure status in 2007, and by laying her off without rehire rights in 2010.
A claim of wrongful discharge in violation of public policy requires Bikis to show that the "dismissal violated a policy that is (1) fundamental, (2) beneficial for the public, and (3) embodied in a statute or constitutional provision." (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256, fns. omitted.) A claim brought under FEHA, which embodies the state's fundamental policy prohibiting disability discrimination, will support a claim for wrongful termination. (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1161; see also § 12920 ["It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of . . . physical disability [or] mental disability"].)
Because Bikis has stated FEHA claims for retaliation, failure to accommodate, failure to engage in the interactive process, discrimination and harassment, and because Bikis alleges she was laid off in 2010 and not rehired because of her disability, Bikis has stated a claim for wrongful termination and the superior court erred in sustaining the defendants' demurrer as to Bikis's eleventh cause of action for wrongful termination.
8. Claims Concerning Medical Records
Bikis alleges two causes of action arising from Marshall's review of her medical records in connection with her 2007 request for a leave of absence.
a. Invasion of Privacy Claim (Sixth Cause of Action)
To state a claim for a violation of the right to privacy under the California Constitution, a plaintiff must allege facts showing "(1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) In its order sustaining the demurrer to Bikis's invasion of privacy claim in her Third Amended Complaint and granting leave to amend, the trial court instructed Bikis to "specify the information sought, obtained or disclosed by defendants and explain why the act of seeking, obtaining or disclosing such information was a serious invasion of her privacy in light of the claims alleged."
In her Fourth Amended Complaint Bikis claims that the district and Marshall violated her privacy in 2007, when Marshall obtained and reviewed all of Bikis's medical records, including those that did not relate to Bikis's request for medical leave, and when Marshall stated to Bikis in front of others at a meeting, "given the trauma of the past, I am wondering if you might not still be suffering some of the residual effects and might not be able to handle the stress and demands of the job."
Despite the trial court's specific instructions, Bikis fails to allege facts to show that Marshall's obtaining and reviewing her medical information was a serious invasion of her privacy rights in the circumstances, which include Bikis's request for medical leave and Bikis providing medical documentation to support the request.
Furthermore, with respect to Marshall's March 2007 statement about "the trauma of the past," Bikis fails to allege facts to show what medical information Marshall disclosed, and why such a disclosure was a serious violation of Bikis's privacy in the circumstances. Although Bikis alleges that Marshall's statement "revealed that she had invaded Plaintiff's confidential medical information," and Bikis characterizes Marshall's statement as a discussion of Bikis's "disability in front of others who did not need to know her private information," Bikis does not identify what information in the statement was or could have been derived from Bikis's medical records, or what information was allegedly private, or the purpose of the meeting, or who was in attendance other than Marshall and Bikis, or any support for her conclusory statement that the others in attendance did not need to know the information.
Bikis has failed to state a claim for violation of her right to privacy under the California constitution.
b. Breach of Medical Confidentiality (Seventh Cause of Action)
Under the CMIA, "No employer shall use, disclose, or knowingly permit its employees or agents to use or disclose medical information which the employer possesses pertaining to its employees without the patient having first signed an authorization . . . , except as follows: [¶] (1) The information may be disclosed if the disclosure is compelled by judicial or administrative process or by any other specific provision of law. [¶] (2) That part of the information which is relevant in a lawsuit, arbitration, grievance, or other claim or challenge to which the employer and employee are parties and in which the patient has placed in issue his or her medical history, mental or physical condition, or treatment may be used or disclosed in connection with that proceeding. [¶] (3) The information may be used only for the purpose of administering and maintaining employee benefit plans, including health care plans and plans providing short-term and long-term disability income, workers' compensation and for determining eligibility for paid and unpaid leave from work for medical reasons." (Civ. Code, § 56.20, subd. (c); see also Pettus v. Cole (1996) 49 Cal.App.4th 402, 451.)
In its order sustaining the demurrer to Bikis's CMIA claim in her Third Amended Complaint with leave to amend, the trial court instructed Bikis to "plead the facts showing that the defendants improperly used or disclosed her medical information in violation of the CMIA."
In the Fourth Amended Complaint, Bikis claims that the district and Marshall violated the Confidentiality of Medical Information Act (CMIA, Civ. Code, § 56 et seq.) by requesting Bikis's "unlimited medical information" in connection with her 2007 request for medical leave. Bikis claims she was "deceived into releasing all of her medical records," and that not all of the records were relevant to the request for leave. Bikis claims Marshall improperly used information from Bikis's records when she referred to Bikis "as not being able to handle the 'stress and demands of the job' [']given the trauma of the past.' "
These vague statements do not allege facts to show that any of Bikis's medical information was improperly used or disclosed by Marshall or the district. Bikis therefore fails to state a claim under the CMIA.
c. Denial of Leave to Amend Medical Records Claims
Bikis argues that she should be given leave to amend her complaint with respect to the medical records claims she makes in her sixth and seventh causes of action, but the only amendment she proposes is to consolidate the facts alleged in support of those two causes of action and allege the consolidated facts in support of each one. Rearranging the existing allegations will not address the fundamental flaw in the claims, which is that Bikis has not alleged facts to show that her privacy was violated or that any of her confidential medical information was improperly used or disclosed. We conclude that Bikis's sixth and seventh causes of action for violation of her constitutional right to privacy and breach of the CMIA, are properly dismissed without leave to amend.
DISPOSITION
We treat the superior court's order sustaining the demurrer and dismissing the case as a judgment of dismissal. The judgment is reversed with respect to Bikis's second cause of action (retaliation), third cause of action (failure to accommodate), fourth cause of action (disability discrimination), fifth cause of action (failure to engage in an interactive process), eighth cause of action (hostile work environment claim against the District), ninth cause of action (hostile work environment and harassment claim against Marshall), tenth cause of action (failure to prevent discrimination and harassment) and eleventh cause of action (wrongful termination), each of which states a claim. The judgment is affirmed with respect to Bikis's first cause of action (violation of the CFRA), sixth cause of action (invasion of privacy), and seventh cause of action (violation of the CMIA). The parties shall bear their own costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.