Memorandum Points and Authorities

Cal. Super. - 6th Dist.June 2, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES R. WILLIAMS, County Counsel (SB. #271253) Electronically Filed MICHAEL C. SERVERIAN, Deputy County Counsel (S.B. #lmmperior Court of CA, OFFICE OF THE COUNTY COUNSEL County of Santa Clara, 7O West Hedding Street, East Wing, Ninth Floor on 9/1 3/2021 1 2:39 pM San José, California 95110-1770 Reviewed B . K N u en Telephone: (408) 299-5900 y' ' 9 y Facsimile: (408) 292-7240 case flmfigfiflé Fees michael.serverian@cco.sccgov.org Enveiapefit 12396, § 6103 Attorneys for Defendant COUNTY OF SANTA CLARA SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA DR. HEATHER COLBERT, M.D., Ph.D., N0. 2 1CV383442 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF V. DEFENDANT’S DEMURRER TO PLAINTIFF’S COMPLAINT COUNTY OF SANTA CLARA; and DOES 1 through 50, inclusive, Date: TBD Time: TBD Defendants. Dept: 20 Judge: Hon. Socrates Manoukian Date of First Filing: June 2, 2021 I. INTRODUCTION Dr. Heather Colbert’s 95-page Complaint contains eleven causes of action. She brings claims based on her alleged whistleblower status under the Fair Employment and Housing Act (FEHA); Labor Code sections 1102.5, 6310 and 63 1 1; and Health & Safety Code section 1278.5. She makes claims for retaliation and discrimination under FEHA and the California Family Rights Act. (Government Code sections 12940(a) and 12945.2.) The County’s demurrer to the Complaint is targeted to causes 0f action five through eight. II. FACTUAL BACKGROUND Dr. Colbert, who served as an outpatient psychiatrist in the County’s Behavioral Health Department, worked for the County from 2006 until her resignation in October 2020. She claims she was forced to resign her position after engaging in protected activity. (Compl. 11 450.) 1 Memorandum ofP’s & A’s ISO ofDefendant’s 21CV383442 Demurrer to Plaintiff s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The County’s demurrer focuses on her fifth through eighth causes of action inclusive. In the demurrer meet and confer process, Dr. Colbert’s counsel clarified that her fifth and sixth causes of action for disability discrimination under the CFRA and FEHA were based 0n stress 0r headaches.1 Her fifth cause 0f action under the CFRA alleges the County retaliated against her after she took a leave for headaches. (Compl. fl 298, 299-300, 333, 507.) But the Complaint does not allege that she took leave under the CFRA as opposed t0 FMLA leave, 0r some other form of leave. Her sixth cause 0f action alleges the County unlawfully discriminated because of her disability she identifies as severe headaches. (Compl. fl 1] 295, 298-300, 520.) The County demurs because the FEHA does not require an employer to accommodate minor conditions and the applicable regulations only identify “migraine headaches” as a qualifying medical condition. (2 Cal. Code Regs. § 11065(d)(9)(B).) With respect her seventh cause 0f action for failure t0 engage in an interactive process and eighth cause of action for failure to accommodate her disability, her Complaint lacks allegations that she had a disability or restrictions for Which she was legally entitled to an interactive process or an accommodation. As t0 her claims that the County refused to participate in an interactive process 0r failed to accommodate her, Dr. Colbert’s Complaint fails to set forth factual allegations that she requested an accommodation; fails to allege she gave the County information about a qualifying medical condition and then setting forth restrictions on her essential job duties to address that qualifying medical condition; does not allege she ever requested an interactive process; and, she sets forth no facts that the County did not engage in a good faith interactive process. III. LEGAL ARGUMENT A. STANDARD FOR DEMURRER A plaintiff must “set forth the essential facts 0f his case with reasonable precision and With particularity sufficient to acquaint a defendant with the nature, source and extent of his cause 0f action.” (Ludgate Ins. C0. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608 [quoting 1 The Complaint only mentions the word “stress” once at fl 15 where she describes a short-lived disagreement with another doctor in November 2014 stemming from “collective departmental stress.” 2 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245].) A demurrer should be sustained Where the complaint “does not state facts sufficient t0 constitute a cause of action.” (Code 0f Civil Proc., § 430.10(e).) In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions 0r conclusions of fact 0r law. [Citation] We also consider matters which may be judicially noticed. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board ofFire Underwriters (1946) 29 Cal.2d 34, 42.) (Blank v. Kirwan, (1985) 39 Cal.3d 3 1 1, 318.) B. PLAINTIFF’S CLAIMS FAIL AS A MATTER OF LAW 1. The Fifth Cause ofAction Fails Because Plaintiff Does Not Allege She Took CFRA Medical Leave The CFRA “allows an employee up to 12 weeks ofunpaid ‘family care and medical leave’ if the employee has worked for the company for more than a year, and has at least 1,250 hours of service during the previous year. (§ 12945.2(a).)” (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 208.) Like its federal counterpart, the Family and Medical Leave Act (FMLA), an employee may take leave for a serious health condition that makes the employee unable t0 perform the functions 0fthe employee’s job. (Ibid; § 12945.2(c)(3)(C).) § 2 et seq., 29 U.S.C.A. § 2601 et seq.; 2 CCR § 7297.10) The elements of a cause of action for retaliation in Violation of the CFRA are: “(1) the defendant was an employer covered by CFRA; (2) the plaintiffwas an employee eligible to take CFRA leave; (3) the plaintiff exercised [his] right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, fine, 0r suspension, because 0f [his] exercise of [his] right to CFRA leave.” (Dudley v. Department ofTransportation (2001) 90 Ca1.App.4th 255, 260.) In a conclusory fashion, Dr. Colbert alleges she was retaliated against in Violation 0f the CFRA “for her missed time.” (Compl. 11 507.) Dr. Colbert’s meet and confer letter referenced allegations atW 295, 298-301, 330, and 333 as supportive of her claims. Paragraph 295 concerns a 3 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 July 25, 2019, conversation between Dr. Colbert and Dr. Michael Meade wherein Dr. Colbert mentioned she had severe headaches and “may seek a medical leave for them.” Later that day, she told a colleague about her conversation With Dr. Meade. (Compl. 1] 298.) The same evening, Dr. Colbert emailed Dr. Meade and told him she was taking time offwork for the headaches and that she had scheduled a doctor’s appointment five days later. (Compl. 1] 299.) The Complaint next alleges that 0n July 26, Dr. Meade instructed his assistant, Melissa Mitchell, t0 forward Family Medical Leave Act (FMLA) forms t0 Dr. Colbert. (Compl. fl 300.) On September 13, Dr. Colbert emailed Ms. Mitchell inquiring about FMLA paperwork. (Compl. 1] 330.) The Complaint, however, does not allege Dr. Colbert took leave under the CFRA. Instead, 0n September 30, 2019, Dr. Colbert told Dr. Meade she was cleared to return to work. (Compl. 1] 333.) The deficiency in her Complaint is her failure t0 allege that she actually took a medical leave, and if she did, Whether it was under the FMLA, the CFRA, or by some other means. As her Complaint stands, she cannot set forth a cause of action for retaliation under the CFRA if she did not take leave under the CFRA. Her Complaint is silent 0n this crucial issue. 2. Plaintiff s Fifth Cause of Action Also Fails Because Non-Migraine Headaches Do Not Qualify as a Serious Health Condition Entitling Her t0 Leave Under the CFRA The CFRA defines a “[s]erious health condition” as “an illness, injury, impairment, 0r physical 0r mental condition that involves either 0f the following: [1]] (A) Inpatient care in a hospital, hospice, or residential health care facility. [or 1]] (B) Continuing treatment or continuing supervision by a health care provider.” (§ 12945.2(c)(8).) “Inpatient care” means “a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any period of incapacity.” (Cal. Code Regs, tit. 2, § 11087(q)(1).) “Continuing treatment” means “ongoing medical treatment or supervision by a health care provider ....” (Id. at (q)(3); Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Ca1.App.5th 570, 601.) The California Fair Employment and Housing Commission, the agency responsible for administering the CFRA, has incorporated by reference the federal regulations interpreting the FMLA to the extent they d0 not conflict With the CFRA, the California Constitution, and other state laws. (Lonickz', supra, 43 Cal.4th at p. 216; Cal. Code Regs, tit. 2, § 7297.10.) The regulation 4 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 expressly excludes common ailments including a cold, flu, earache, upset stomach, and ordinary headaches. (29 C.F.R. § 825.1 13(0) (d); Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 8.) 29 C.F.R. section 829.1 13(d) states in pertinent part: Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental 0r orthodontia problems, periodontal disease, etc., are examples 0f conditions that d0 not meet the definition 0f a serious health condition and do not qualify for FMLA leave. (Emphasis added.) Gibbs reported flu-like symptoms to her employer, missed three days of work, and went t0 the doctor twice. (Gibbs, supra, 74 Ca1.App.4th 1, 8.) The trial court granted the employer’s post- trial motion for judgment notwithstanding the verdict. The court of appeal affirmed and held that Gibbs failed t0 establish a “serious health condition” warranting CFRA leave because “ordinary headaches” are not considered “serious health conditions” under the CFRA. (Id. at pp. 8-9.) Rather, a “serious health condition” necessitates “continuing medical treatment.” (Id. at p. 9.) Dr. Colbert’s health condition, as alleged, is a non-migraine headache. (Compl. 1] 295, 298- 299.) She told Dr. Meade she “might” take medical leave and that she had scheduled a doctor’s appointment five days later. (Compl. fl 299.) A headache with possibly one medical Visit does not satisfy the requirements of “serious medical condition” under the CFRA. The Complaint also fails to allege continuing treatment 0r supervision by a health care provider beyond the one medical Visit 0n July 30th. Thus, Dr. Colbert cannot satisfy the third element of her cause of action under the CFRA, i.e., that she exercised her right to leave for a qualifying CFRA purpose. Since she did not suffer from a “serious health condition,” the demurrer must be sustained. 3. Plaintiff s FEHA Disability Discrimination Cause 0f Action Fails Because Headaches Are Not Considered t0 Be a Qualifying Medical Disability FEHA prohibits employers from discriminating against employees on the basis of an actual 0r perceived disability. (GOV. Code, §12940(a).) T0 establish a prima facie case of disability discrimination, Dr. Colbert must show that she: (1) suffers from a disability; (2) is a qualified individual; and (3) was subj ect t0 an adverse employment action because of the disability. (Brundage v. Hahn, 57 Ca1.App.4th 228, 236 (1997) (citations omitted); Furtado v. State Personnel 5 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bd., 212 Ca1.App.4th 729, 744 (2013).) Plaintiff’ s Complaint identifies stress and headaches as her qualifying disability. However, her alleged “stress” is based 0n a one-time allegation of “collective stress” in 2014. (Compl. 11 15.) She also alleges she had headaches in July 2019. (Compl. 1] 295, 299.) FEHA defines a mental disability as a psychological disorder or condition that limits a major life activity. (§ 12926G)(1).) “Major life activities” includes “physical, mental, and social activities and working.” (§ 129260)(1)(C).) A condition or impairment limits a major life activity if it makes the achievement of the major life activity difficult. (§ 12926G)(1)(B), (m)(1)(B)(ii). But not every illness is a qualifying disability, and the regulations specifically note a disability does not include conditions that are mild 0r do not limit a major life activity. (2 Cal. Code Regs. § 11065(d)(9)(B); Avila v. Continental Airlines, Ina, (2008)165 Ca1.App.4th 1237, 1249 (as modified 0n denial of reh’g.). Transient, non-permanent conditions 0r temporary, non-chronic impairments fall short of the standard for establishing a “disability.” (Arteaga v. Brink’s, Inc. (2009) 163 Cal.App.4th 327, 348.) 2 Cal. Code Regs. § 11065(d)(9)(B) states: These excluded conditions have little 0r n0 residual effects, such as the common cold; seasonal 0r common influenza; minor cuts, sprains, muscle aches, soreness, bruises, 0r abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders. (Emphasis added.) Dr. Colbert’s complaints 0f one episode of collective stress in 2014 and one non-migraine headache in 2019 are not a qualifying medical conditions under the FEHA. (Compl. 1] 295, 298-299; 2 Cal. Code Regs. § 11065(d)(9)(B).) Since stress and headaches are not qualifying disabilities under the FEHA, Dr. Colbert’s sixth cause of action for disability discrimination under the FEHA must be dismissed. // // // // Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. Plaintiff s Seventh and Eighth Causes 0f Actions for Failure To Engage In An Interactive Process and Failure T0 Accommodate Lack Factual Allegations Entitling Dr. Colbert t0 Relief Dr. Colbert’s seventh and eighth causes 0f action for failure to engage in an interactive process and failure t0 accommodate fail for the same reason her sixth cause of action does-she is unable t0 show that she is “qualified” under FEHA. (Luz' v. City & Cnty. ofSan Francisco (2012) 211 Cal.App.4th 962, 971; Nadaf-Rahrov v. Neiman Marcus Grp., Ina, 166 Cal.App.4th 952, 979 (2008).) An employer only has an obligation t0 engage in an interactive process regarding reasonable accommodations With an employee “with a disability.” 2 C.C.R. § 1069(a) (emphasis added). An employer has no obligation to engage in an interactive process or accommodate an individual who does not have such a qualifying disability. As set forth above, Dr. Colbert does not adequately allege she had a qualifying disability. As such, the County had no obligation to engage in an interactive process with Plaintiff. As discussed above, Plaintiff cannot show she was “qualified” under FEHA because neither stress nor non-migraine headaches are qualifying disabilities. Accordingly, the seventh and eighth causes 0f action should be dismissed. (a) Failure t0 Engage in an interactive process “The ‘interactive process’ required by the FEHA is an informal process With the employee or the employee’s representative, t0 attempt to identify a reasonable accommodation that will enable the employee t0 perform the job effectively. [Citation] Ritualized discussions are not necessarily required.” (Scotch v. Art Institute ofCalifornia (2009) 173 Ca1.App.4th 986, 1013.) The employee must initiate the process unless his or her disability and the resulting limitations are obvious. “Once the interactive process is initiated, the employer’s obligation t0 engage in the process in good faith is continuous.” (Ibid.) “Both employer and employee have the obligation ‘to keep communications open’ and neither has a right to obstruct the process.” (Id. at p. 1014.) “‘[T]he interactive process of fashioning an appropriate accommodation lies primarily with the employee.’ [Citation] An employee cannot demand clairvoyance 0f his employer. [Citation] ‘[T]he employee can’t expect the employer to read his mind and know he secretly wanted a 7 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing t0 accommodate a disability of Which it had n0 knowledge.’ [Citation] ‘It is an employee’s responsibility to understand his 0r her own physical or mental condition well enough to present the employer at the earliest opportunity with a concise list 0f restrictions which must be met t0 accommodate the employee.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 443.) The only references in the Complaint t0 an interactive process are quotations and recitations from various sections of the Government Code. (Compl. 1] 517-519.) The Complaint makes no specific factual allegations that Dr. Colbert had a qualifying physical or mental condition; that the County was aware that she had a qualifying medical condition; that Dr. Colbert initiated 0r requested an accommodation t0 perform the essential fimctions of her job; that she was Willing t0 participate in an interactive process; and, that the County failed t0 participate in the process? She simply has not adequately alleged facts stating a claim for failure to engage in the interactive process under the FEHA, and for those reasons, the demurrer must be sustained. (b.) Failure t0 Accommodate “Under the FEHA, an employer’s ‘fai1[ure] t0 make reasonable accommodation for the known physical or mental disability of an applicant or employee’ is an unlawfill employment practice. [Citation] A reasonable accommodation is ‘any modification or adjustment to the workplace that enables the employee to perform the essential functions 0f the job held 0r desired. ’ [Citation] Reasonable accommodations include ‘ [j]ob restructuring, part-time 0r modified work schedules, reassignment t0 a vacant position. . .and other similar accommodations for individuals With disabilities.’ [Citations.]” (Swanson v. Morongo Unified School District (2014) 232 Ca1.App.4th 954, 968-969.) “The elements 0f a failure t0 accommodate claim are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the 2 The most detailed allegations with respect t0 requesting a reasonable accommodation or not engaging in an interactive process pertain to Dr. Yasmin, not Dr. Colbert. It is unclear why these allegations are included in the Complaint. (Compl. fl 307-323.) 8 Memorandum 0f P’s & A’s ISO 0f Defendant’s 21CV383442 Demurrer t0 Plaintiff” s Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employer failed to reasonably accommodate the plaintiff s disability.” (Swanson, supra, 232 Ca1.App.4th at p. 969.) As with the seventh cause of action, Dr. Colbert’s eighth cause of action for failure to accommodate similarly lacks specific, non-conclusory factual allegations that she had a qualifying disability; that the medical condition affected her ability to perform her job; that she requested an accommodation from the County or that the County was aware 0f her alleged condition; and, that the County failed to provide a reasonable accommodation. Accordingly, the demurrer to this cause 0f action should be sustained. IV. CONCLUSION Based on the foregoing, the County respectfully requests that the Court sustain its demurrer as to the fifth through eighth causes of action, Without leave to amend. Dated: September 13, 2021 Respectfully submitted, JAMES R. WILL S County Counsel By: MfCHAEL C. SERVERIAN Deputy County Counsel Attorneys for Defendants COUNTY OF SANTA CLARA 2483776 Memorandum of P’s & A’s ISO of Defendant’s 21CV383442 Demurrer t0 Plaintiff s Complaint