Memorandum Points and Authorities

Cal. Super. - 6th Dist.September 8, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV388427 Santa Clara - Civil DAVID J. MICLEAN (SBN 115098) dmiclean@miclangleason.com MICLEAN GLEASON LLP 411 Bore] Avenue, Suite 310 San Mateo, CA 94402 Office: (650) 684-1 181 Fax: (650) 684-1 182 Attorneys for Defendants Power Integrations, Inc., and Douglas Bailey Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/29/2021 4:34 PM Reviewed By: V. Castane Case #21 CV388427 Envelope: 7954254 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA PETER ROGERSON, an individual, Plaintiff, V. POWER INTEGRATIONS, INC., a Delaware corporation; DOUGLAS BAILEY, an individual; and DOES 1-20, inclusive, Defendants. Case No. 21-CV-388427 DEFENDANTS POWER INTEGRATIONS, INC. AND DOUGLAS BAILEY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT Date: Time: Dept: 20 Judge: Hon. Socrates P. Manoukian Complaint Filed: September 8, 2021 Trial Date: TBD V. Castaneda da MEMO. OF POINTS AND AUTHORITIES CASE NO. 2 1 -CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION This action involves Plaintiff Peter Rogerson’s (“Plaintiff’ 0r “Rogerson”) allegations that he was purportedly terminated 0n the basis 0f a disability and his age (disputed by Defendant Power Integrations, Inc. (“PI”)). This demurrer is brought as to the Fifth and Seventh Causes of Action for failure t0 accommodate a disability and failure t0 engage in the interactive process under Cal. GOV. Code §§ 12940(m) and (n), respectively. The problem with Plaintiff’s Complaint is that although it is long on allegations about PI employees’ comments about his health and use 0f a cane (disputed), it is short 0n, and totally devoid 0f, allegations that Rogerson was disabled from working 0r had limitations caused by his alleged disability, that he could not do his job without accommodation, 0r that he initiated an interactive process With PI. Rogerson admits (by exclusion) that he never reported a disability, 0r any limitations caused by a disability, t0 PI, never requested an accommodation, and never initiated an interactive process prior t0 his termination notice on April 13, 2020. Indeed, Plaintiff’s complaint alleges the opposite, that Mr. Rogerson’s “. . .age and disability did not interfere with his performance, which was stellar at the time 0f and preceding his termination,” that he was “high functioning,” had “excellent tenured performance,” and “[t]hroughout his employment, PLAINTIFF excelled as an employee, receiving high marks for his performance, and being assigned t0 manage significant tasks.” (See Complaint, pp. 2: 17, 3:1, 6:15-16, and 10:19-22). Plaintiff, according t0 his own allegations, was able to perform the essential functions of his job Without limitation and Without any accommodation. In meet and confer communications prior t0 this motion, Plaintiff’s counsel suggested that it was PI’S duty t0 initiate the discussion about accommodation and to provide accommodation. But that is not the law. Although an employer may have an affirmative duty t0 investigate/accommodate an employee’skm disability that limits the employee’s ability t0 d0 the essential functions of their job, an employer is not required to read the mind of an employee with alleged health problems and suggest accommodations when the employee is doing their job without limitations notwithstanding a belatedly claimed disability after termination. Further, MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 under Cal. Gov. Code § 12940(n), the express language of the statute requires the employee t0 initiate the interactive process under that statute (which Plaintiff neither did nor alleged he did). The demurrer to the Fifth and Seventh Causes 0f Action should be sustained. II. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background Defendant Power Integrations, Inc. (“PI”) is a Silicon Valley-based supplier 0f high- performance components used in high-Voltage power conversion. PI is a public company incorporated in Delaware with its principal place of business in San Jose (Complaint, para. 11). Defendant Douglas Bailey (“Bailey”) is the Vice President 0f Marketing for PI and has known Plaintiff over 20 years. (Complaint, para. 12.) Plaintiff had worked for PI over 10 years when he was terminated on April 13, 2020. (Complaint, paras. 2 and 6). On April 13, 2020, Plaintiff was given the option of immediate termination with severance 0r continued employee status during the severance period so he could find a new job. (Complaint, para 6.) Plaintiff alleges he suffered a back injury during a work trip in Germany in 2018, two years before his termination (Complaint, para. 21), and that he suffered from various disabilities (Complaint, para 3). There are no allegations that Plaintiffmade a workers’ compensation claim relating to the 2018 injury in Germany, 0r that his alleged health conditions limited 0r restricted his work functions. On the contrary, the Complaint alleges that Plaintiff” s “. . .age and disability did not interfere with his performance, which was stellar at the time 0f and preceding his ... termination,” that he was “high functioning,” had “excellent tenured performance,” and “[t]hr0ughout his employment, PLAINTIFF excelled as an employee, receiving high marks for his performance, and being assigned t0 manage significant tasks.” (See Complaint, pp. 2: 17, 3:1, 6:15-16, and 10: 19-22.) Plaintiff, according t0 his own allegations, was able to perform the essential functions 0f his job without limitation and without any accommodation. Plaintiff alleges, however, that Defendants had knowledge 0f his disabilities. (Complaint, para 6). There are n0 allegations in the Complaint that Plaintiff affirmatively advised PI he was suffering from a “disability,” that he had limitations in performing his job caused by the disability, that he needed accommodation to perform the essential functions 0f his job, what 2 MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accommodation he allegedly needed, nor that he requested/initiated an interactive process with PI regarding his claimed disability and purported need for an accommodation. B. Procedural Background After Plaintiffwas terminated from PI, he filed an administrative claim for wrongful termination with the California Department 0f Fair Employment and Housing which allegedly issued a Right t0 Sue letter. This suit was filed 0n September 8, 2021. On November 30, 2021, counsel for PI and Bailey sent a meet and confer letter to Plaintiff’s counsel communicating Defendants’ position that the Fifth Cause of Action for failure to engage in the interactive process (Cal. GOV. Code § 12940 (n)), and the Seventh Cause 0f Action for failure t0 accommodate disability (Cal. Gov. Code § 12940(m)) were insufficiently pled. (See Exhibit 1 t0 the Declaration 0f David J. Miclean (“Miclean Decl.”) filed concurrently herewith.) On December 8, 2021 Plaintiff’s counsel called counsel for PI and shared her opposing View that the claims were sufficiently pleaded. (Miclean Decl., para. 5.) On December 9, 2021, Plaintiff’ s counsel sent a letter confirming Plaintiff s position that the Fifth and Seventh Causes 0f Action were adequately pled and taking the position that “employers who are aware 0f an employee’s disability have an affirmative duty t0 make reasonable accommodations for such disability and to at least determine whether an accommodation is needed.” (Miclean Decl., EX. 3.) On December 13, 2021, PI’s counsel sent a follow-up communication responding to the letter from Plaintiff s counsel, in which PI refuted Plaintiff s claims regarding the status 0f the law and affirming that there was n0 duty 0f an employer t0 accommodate an employee’s handicap until the employer is aware 0f both the respondent’s disability and physical limitations on job performance caused by the disability. (Miclean Dec1., EX. 4.) On December 15, 2021, PI’s counsel confirmed that the parties seemed at impasse over the sufficiency 0f Plaintiff” s complaint 0n the Fifth and Seventh Causes of Action, and that this motion would follow. (Miclean Decl., para. 9.) MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ARGUMENT A. The Claims Subject t0 Demurrer - The Fifth and Seventh Causes 0f Action Rogerson’s Fifth Cause 0f Action is styled “Failure t0 Engage in the Interactive Process Under FEHA....” (Complaint, 18: 13-15.) Under California Government Code section 12940(n), it is unlawful for “...an employer to fail t0 engage in a timely, good faith, interactive process with an employee to determine effective reasonable accommodations, if any, in resgonse t0 a request for reasonable accommodation bv an emplovee...” (Id, 18:18-21.) (Emphasis added.) Similarly, Rogerson’s Seventh Cause 0f Action is for the alleged failure 0f PI to make reasonable accommodations to allow Plaintiff to accomplish his necessary job functions. The Complaint alleges it is unlawful for an employer t0 fail “...t0 make reasonable accommodations for the disability 0f an employee t0 enable them t0 perform a position’s essential functions.” (Complaint, 22: 14-17.) There are no allegations in the Complaint that Plaintiff affirmatively advised PI he was suffering from a “disability,” that he had limitations in performing his job caused by the disability, that he needed accommodation to perform the essential functions of his job, what accommodation he allegedly needed, nor that he requested 0r initiated an interactive process With PI regarding his claimed disability and purported need for an accommodation. Conversely, Plaintiff confirmed in the Complaint that his “. . .age and disability did not interfere with his performance.” (Complaint, para. 33.) Neither the Fifth nor the Seventh Causes of Action states a claim upon which reliefmay be granted and, therefore, this demurrer should be sustained. Further, admissions in the Complaint are binding, and there is n0 potential these defects could be cured by amendment, and, therefore, the demurrer should be sustained without leave t0 amend. B. Legal Standards 0n Demurrer A demurrer t0 a complaint may be sustained if “[t]he pleading does not state facts sufficient t0 constitute a cause 0f action.” Code CiV. Proc. § 430. 10(6). A demurrer can be made to an entire complaint or individual causes 0f action therein. Id. at § 430.50(a). In deciding a demurrer, While well-pleaded allegations in a complaint must be accepted as true, n0 such 4 MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deference is given t0 “contentions, deductions 0r conclusions 0f fact 0r law.” Hoflman v. Smithwoods RVPark, LLC (2009) 179 Cal. App. 4th 390, 400; Evans v. City ofBerkeley (2006) 38 Cal. 4th 1, 6. The allegations in a complaint are “‘a judicial admission’” that concede “‘the truth 0f C“ [the] matter’” and have the effect 0f removing it from the issues.” Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324; see Uhrich v. State Farm Fire & Casually C0. (2003) 109 Cal.App.4th 598, 613 [“a judicial admission cannot be rebutted: [i]t estops the maker”]; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 871 [judicial admissions in a complaint overcome evidence even if the opposing party seeks to contradict the prior admission]; see also, Shirvanyan v. L.A. Cmty. Coll. Dist, 59 Cal. App. 5th 82, 100 (2020). There is no potential, therefore, that the complaint can be amended to contradict claims set forth in the instant complaint. C. The Fifth Cause 0f Action for “Failure t0 Engage in an Interactive Process” Fails t0 State a Claim Because No Request for an Accommodation Is Alleged The instant complaint suffers from the intentional 0r unintentional misconception that California employers are vested with the affirmative duty t0 discover the job limitations purportedly caused by the physical ailments suffered by their employees, and t0 actively propose accommodations that would ameliorate those job limitations.1 Such a duty would be patently unworkable, would create endless litigation, and, therefore, has never been the law in this State. Cal. GOV. Code § 12940(n) states: “For an employer or other entity covered by this part t0 fail t0 engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response t0 a request for reasonable accommodation by an employee 0r applicant With a known physical or mental disability 0r known medical condition.” (Emphasis added.) Instead, the Legislature and the courts have created a two-way system which requires the cooperation 0f the employee and his employer. In this regard: 1 This is essentially the argument Plaintiff’s counsel makes 0n the basis 0f the Prilliman case in her letters 0f December 9 and 14, 2021 (Miclean Decl., EXS. 3 and 5). 5 MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[I]t is important t0 distinguish between an employer’s knowledge 0f an employee’s disability versus an employer’s knowledge 0f any limitations experienced by the employee as a result of the disability. This distinction is important because the ADA requires employers t0 accommodate limitations, not disabilities.” Scotch v. Art Institute ofCalifomia (2009) 173 Cal.App.4th 986, 1013. Quoting Taylor v. Principal Financial Group (5th Cir. 1996) 93 F.3d 155, 164).” 2 (Emphasis added.) The court in Scotch further quotes from Taylor holding “where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious and apparent t0 the employer, the initial burden rests primarily upon the employee to specifically identify the disability and resulting limitations, and t0 suggest the reasonable accommodations.” (Id. at 1013.) In the instant Complaint, there are no allegations that Plaintiffhad limitations (because of a disability) 0n his ability t0 do his job at PI, nor that he requested accommodation 0r initiated interactive process. There are n0 allegations in the complaint as t0 What accommodation Plaintiff purportedly required, if any. Conversely, Plaintiff alleges he had no limitations 0n the performance of his job caused by his disabilities and that his alleged “. .. disability did not interfere with his performance.” Plaintiff cites Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 949-950, claiming an employer that is allegedly aware 0f an employee’s disability is required t0 make accommodation for such disability and to at least determine whether accommodation is needed (Miclean Decl., EX. 3). But that is not what the Prillz'man case says. In Prilliman, two United Airlines pilots were grounded and put on disability by their employer because they contracted AIDS (an FAA rule barred them from flying with that disability). So, there was n0 question 2 Because the California Legislature modeled the reasonable accommodations requirements of § 12940(m) and the interactive process provisions of section (n) 0n the parallel federal requirements 0f the ADA, it is appropriate t0 use their reasoning to analyze similar provisions in the FEHA. Nadaf-Rahrov v. Nieman Marcus (2008) 166 Cal. App. 4th 952, 975. 6 MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 regarding the employees’ disabilities, their limitations 0n their ability to fly a plane, and that they were grounded by FAA rule. The court in Prilliman determined that n0 accommodation was available for one 0f the pilots (because his condition was significantly deteriorated), but that United should have affirmatively explored potential accommodations with the second pilot (in a non-flight job) who had more cognitive capabilities at the time he was grounded. The Prilliman court specifically held “the Supreme Court 0f Washington, in interpreting a statute and regulation similar t0 California Government code section 12940, subdivision (k), held that ‘the duty 0f an employer reasonably t0 accommodate an employee’s handicap does not arise until the employer is aware 0f respondent’s disability and physical limitations. [Citations.] The employee bears the burden of giving the employer notice of the disability. [Citation.] This notice then triggers the employer’s burden t0 take ‘positive steps’ t0 accommodate the employee’s limitations. . . .” (Prilliman, supra, at 949-950.) (Emphasis added.) The Prilliman court noted that it is not only an employer’s knowledge 0f a “disability,” but also the “physical limitations” 0f that disability 0n the ability 0f the employee t0 d0 their job that triggers any obligation 0n reasonable accommodation/interactive process. In Plaintiff’s Complaint, there are no allegations that Plaintiff’s purported “disability” limited his ability to do his job; in fact, he alleges the opposite. (See Complaint, p. 10, para. 33.) These specific claims are logically incompatible with the assertion that Rogerson’s disabilities resulted in any limitation Which made him unable t0 perform his job duties, that the parties should have engaged in discussions to ameliorate these (non-existent) limitations, or that such amelioration was possible. Since the pleadings are bereft of this critical aspect of a failure to engage claim, the Fifth Cause 0f Action fails as a matter 0f law. D. Likewise, the Seventh Cause 0f Action Fails as There Are N0 Allegations Rogerson’s Abilities at Work Were Limited 0r That Defendant Could Have Done Anything t0 Accommodate Those Limitations Under California Government Code § 12940, it is an unlawful employment practice for an employer t0 fail t0 make reasonable accommodation for the known physical or mental 7 MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability 0f an applicant 0r employee. Prilliman v. United Air Lines, Inc. (1997) 53 Ca1.App.4th 935, 946-947. The duty 0f an employer reasonably t0 accommodate and employee’s handicap does not arise until the employer is aware 0f the employee’s disability and physical limitations. (Id. at 949-950.) As set forth in Scotch v. Art Institute ofCalz'fornia (2009) 173 Ca1.App.4th 986, “it is important t0 distinguish between an employer’s knowledge 0f an employee’s disability versus an employer’s knowledge 0f any limitations experienced by the employee as a result 0f the disability. This distinction is important because the Americans with Disabilities Act of 1990 [citation] requires employers t0 reasonably accommodate limitations not disabilities.” Scotch, supra, at 991, citing Taylor v. Principal Financial Group, Inc. (5th Cir. 1996) 9O 3 F.3d 155, 164. Here, unlike the plaintiffs in Prilliman, Plaintiff has not alleged that he advised PI that he had a “disability,” has not alleged any limitations 0n the performance 0f his job caused by his alleged disability, has not alleged he requested an accommodation, has not alleged what accommodation he required t0 d0 his job, and fails t0 allege any initiation 0r effort by him t0 promote 0r initiate an interactive process to discuss accommodation. On the contrary, he alleges that his disability did not interfere with the performance 0f his job. (Complaint, para. 33.) Plaintiff” s allegations are insufficient t0 sustain a cause 0f action for failure t0 accommodate a disability. Because 0f Plaintiff’s allegations that he could perform the functions 0f his job despite his alleged disability and without accommodation, the demurrer to this cause 0f action should be sustained Without leave to amend. /// /// /// /// /// /// /// /// MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court sustain their demurrer and dismiss the Fifth and Seventh Causes of Action in Plaintiff” s Complaint in their entirety and Without leave to amend. Dated: December 17, 2021 Respectfully Submitted, MICLEAN GLEASON LLP David J. Miclean Attorneys for Defendants POWER INTEGRATIONS, INC.; and DOUGLAS BAILEY MEMO. OF POINTS AND AUTHORITIES CASE NO. 21-CV-388427